Reference by the Ombudsman Commission of Papua New Guinea [2010] PGSC 10; SC1058 (4 June 2010)

SC1058

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REF NO. 1 OF 2008

REFERENCE PURSUANT TO CONSTITUTION, SECTION 19;
IN THE MATTER OF SECTIONS 1 AND 2 OF THE ORGANIC LAW ON PROVINCIAL GOVERNMENTS AND LOCAL-LEVEL GOVERNMENTS (AMENDMENT NO 10) LAW 2006

REFERENCE BY THE OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA

Waigani: Injia, CJ, Salika Dep. CJ, Sakora, Kirriwom & Gavara-Nanu, JJ
2009: 26th – 27th October
2010: 4th June

CONSTITUTIONAL LAW - Validity of – Amendment to Organic Law on Provincial and Local-Level Governments – Heads of Local-Level Governments removed from Provincial Assembly leaving only members of the National Parliament and nominated members comprising the Provincial Assembly – Whether amendments unconstitutional – Constitution, s 187 C(2)(a); Organic Law on Provincial and Local-Level Governments, s 10 (3)(a), (b), (c); s 18 (2).

This is a reference by the Ombudsman Commission on the validity of Sections 1 and 2 of Organic Law on Provincial Governments and Local-Level Governments (Amendment No. 10) Law 2006. The reference was brought under s 19 of the Constitution. Section 1 amended s 10 (3) of the Organic Law on Provincial and Local-Level Governments (OLPLLG) by repealing Subsection (3) (b) and (c). The effect of the amendment was that it removed Heads of Local Level Governments and representatives of Urban Councils and Authorities from the Provincial Assembly. Section 2 repealed OLPLLG, s 18 (2) and replaced it with a new Subsection (2), the effect of which was that it excluded Heads of Local Level Governments and representatives of Urban Councils and Authorities from holding the position of Deputy Governor of the Province.

Held:

Section 1 and 2 of the Organic Law on Provincial Governments and Local-Level Governments (Amendment No. 10) Law 2006 (Amendment Law) are inconsistent with the spirit and purpose of Section 187C (2) (a) of the Constitution to have "a mainly elective (elected directly or indirectly) legislature" and therefore declared unconstitutional.

Cases cited in the judgment:

Application by Gabriel Dusava (1998) SC581
Constitutional Reference No. 1 of 1977 [1977] PNGLR 362
Haiveta v. Wingti (No. 3) [1994] PNGLR 197
Premdas -v- The Independent State of Papua New Guinea [1979] PNGLR 329
PLAR NO. 1 of 1980 [1980] PNGLR 326
Reference by the Western Highland Provincial Government (1995) SC486
Reference by Simbu Provincial Executive [1987] PNGLR 151
SCR No. 5 of 1980 Re Joseph Auna [1980] PNGLR 500
SCR No. 12 of 2001; Re Validity of National Capital District Commission Act, 2001 (2001) SC680
SCR No. 2 of 1992; Reference by the Public Prosecutor [1992] PNGLR 336;
SCR No. 1 of 1990; Reference by the Executive Council of the Enga Provincial Government [1990] PNGLR 53
The State v The Independent Tribunal Established under s 27 of the Constitution: Ex Parte Moses Sasakila [1976] PNGLR 491
The State -v- NTN Pty Ltd and NBN Ltd [1992] PNGLR 1

Counsel:

V Narokobi, for the Referror
A Manase, for First Intervenor – Enga Provincial Government
C Mende, for Second Intervenor, Clerk of National Parliament and National Parliament
L Kandi, for Third Intervenor, Attorney-General & The State
M Kambao, for Fourth Intervener – Morobe Provincial Government

7th May, 2010

1. INJIA, CJ: This is a Special Reference made by the Ombudsman Commission of Papua New Guinea under s 19 of the Constitution seeking this Court’s opinion on the Constitutional validity of Section 1 and 2 of the Organic Law on Provincial Governments and Local-Level Governments (Amendment No. 10) Law 2006 (hereinafter referred to as the Amendment Law).

QUESTION

2. The question in the Reference is:

"Whether Sections 1 and 2 of the Organic Law on Provincial Governments and Local-Level Governments (Amendment No 10) Laws 2006, in removing:

(1) Heads of the rural Local-Level Government as Members of the Provincial Assembly; and

(2)One representative to represent the heads of both urban authorities and urban councils as member of the Provincial Assembly; and

(3) Either the heads of the rural Local-level Government or the representative of the heads of both urban authorities and urban councils from contesting the post of Deputy Governor is contrary to the requirements of Section 187C(2)(a) of the Constitution to have "an elective or mainly elective legislature", as understood, applied and enforced within the meaning of the Second National Goal (Equality and Participation) of the National Goals and Directive Principles and therefore unconstitutional?

BACKGROUND

3. The Provincial Government system as introduced in 1975 shortly after Independence, through the Constitution and the Organic Law on Provincial Governments provided for an elective legislature in which members of the Provincial Assembly of each province in Papua New Guinea were directly elected by the people in general elections conducted for that purpose.

4. In 1995 Parliament amended the Constitution and the Organic Law on Provincial Governments and introduced a system of provincial governments and local-level governments. In respect of provincial legislatures, s 187C (2)(a) of the Constitution made provision for "An elective or mainly elective provincial legislature". Consequently the Organic Law on Provincial Governments and Local-Level Governments (OLPGLLG), s10 (2) provided for elected representatives and nominated members to comprise the provincial legislature. Elected representatives consisted of members of the National Parliament (s 10 (3) (a)); elected Heads of Local-Level Governments or Councils (s 10 (3)(b)); and elected representatives of Urban Councils or Authorities (s 10 (3)(c)). Those members were elected by the people at a general election conducted for that purpose under the Organic law on National and Local-Level Government Elections (OLNLLGE). Nominated or appointed members comprised of up to four (4) traditional Chiefs in provinces which had chieftaincy systems (s10 (3)(d)); one woman representative appointed by the provincial executive council (s 10(3)(e)); and three (3) other members appointed by the provincial assembly (s 10(3)(f)). The nominated or appointed members were not elected by the people under the OLNLLGE but selected by different interest groups following internal selection procedures and recommended for appointment to the appropriate appointing authority specified in Subsection (3) (d), (e) and (f).

5. In SCR No. 2 of 1995, Reference by the Western Highland Provincial Government (1995) SC 486, the Provincial Executive Council of Western Highlands Province challenged the amendment of OLPLLG, s10 (3) on the ground that it was inconsistent with s 187C (2)(a) of the Constitution. By majority of 4-1 (Amet CJ, Los, Brown & Sawong JJ, Kapi DCJ (as he then was, dissenting), the Court ruled that the amendment was not inconsistent with Constitution, s187C (2)(a). The Court decided that the expression "An elective or mainly elective provincial legislature" means an elected provincial assembly constituted by members who were directly or indirectly elected to that provincial assembly by the people at a general election. The Court also decided that the expression "mainly elective provincial legislature" means there must be more elected members (directly or indirectly elected) compared with nominated or appointed members.

6. In 2006, Parliament amended s 187C (2) (a) of the Constitution to provide for "a mainly elective (elected directly or indirectly), legislature." At the same time Parliament amended the OLPGLLG by repealing s 10 (3)(b) & (c). Section 1 amended s 10 (3) of the Organic Law on Provincial and Local-Level Governments (OLPLLG) by repealing Subsection (3) (b) and (c). The effect of the amendment was that it removed elected Heads of Local Level Governments and elected representatives of Urban Councils and Authorities from the Provincial Assembly. Section 2 repealed OLPLLG, s 18 (2) and replaced it with a new Subsection (2), the effect of which was that only members of the National Parliament were eligible to hold the position of Deputy Governor. The amendment excluded Heads of Local Level Governments and elected representatives of Urban Councils and Authorities from holding the position of Deputy Governor.

7. Section 187 C of the Constitution as amended, states:

"187C. Constitution, functions, etc., of Provincial Governments and Local- level Governments

(1) Subject to this part, an Organic Law shall make provision in respect of the constitution, powers and functions of a Provincial Government or a Local-level Government.

(2) For each Provincial Government and Local-level Government, there shall be established—

• (a) a mainly elective (elected directly or indirectly), legislature with such powers as are conferred by law; and
  
• (b) an executive; and
  
• (c) an office of head of the executive.
  

(3) An Organic Law shall provide for the minimum number of members for the Provincial Assemblies and Local-level Governments and the maximum number of members that may be appointed as nominated members of Provincial Assemblies and Local-level Governments.

(4) A question of the adequacy of provision made under Subsection (3), (4), (5) or (6) is non-justiciable.

(5) Elections to a Local-level Government shall be conducted, in accordance with an Organic Law, by the Electoral Commission."

8. Section 10 of the OLPGLLG as amended, states:

"10. Provincial Government and Provincial Legislature.

(1) A Provincial Government is hereby established for each province.

(2) A provincial legislature, to be known as the Provincial Assembly or by whatever local name is considered appropriate, is hereby established for each Provincial Government.

(3) A Provincial Assembly shall consist of—

(a) all members of the Parliament representing electorates in the Province; and

(b) repealed; and

(c) repealed; and

(d) subject to Subsection (6), where the chieftaincy system is in existence and is accepted in a province, paramount chiefs from the Province—

(i) not exceeding three in number; or

(ii) where the Minister responsible for provincial government and local-level government matters considers that particular circumstances justify it, not exceeding four in number,

or their duly appointed nominees, who shall be appointed by the Minister responsible for provincial government and local-level government matters on the recommendation of the Provincial Executive Council; and

(e) one woman representative nominated in accordance with an Act of the Parliament and appointed by the Provincial Executive Council; and

(f) such other members, not exceeding three in number, as the Provincial Assembly may appoint from time to time.

(4) An Act of the Parliament shall make provision for the qualifications and disqualifications of the members referred to in Subsection (3)(f).

(5) All members of a Provincial Assembly have full voting powers and shall be counted towards the quorum of a Provincial Assembly.

(6) Where there are more than one paramount chiefs in a district only one may be recommended for appointment."

9. In relation to the position of the Deputy Governor, prior to 2006, s18(2) of OLPLLG provided for election of the Deputy Governor by the Provincial Assembly from amongst the elected heads of rural level governments. In the 2006, s 2 of the Amendment Law repealed s 18(2) and replaced it with "s 10(3)(a)" which in effect meant only members of National Parliament would be elected Deputy Governors.

10. In issue in this reference is the meaning of several words and phrases appearing in Constitution s 187 C (2)(a). Those are "mainly", "mainly elective", "elective", elective legislature", "elected directly", and "elected indirectly".

11. This is not the first time that this Court is invited to express its opinion on the interpretation of Constitution, s 187 (2)(a) and its application to OLPGLLG, s 10(3). In SCR No. 2 of 1995 the Court dealt with issues relating to the interpretation of many of the words and phrases in s 187C(2)(a) which have now been argued before us in this Reference. Mr Kandi and Mr Mende who argued the negative case relied on that decision to submit that much of the issues in the present reference were raised in that reference and determined by that Court; therefore it is not necessary for this Court to deal with the same issues. I will deal with this submission later in my judgment.

SUBMSSIONS FOR THE AFFIRMATIVE

12. Mr Narokobi, Mr Manase and Mr Kambao argued the case for the affirmative. Mr Narokobi delivered the arguments for the referrer. They contend that the Amendment Law concentrates power in elected members of Parliament and nominated or appointed members. It removes elected Heads of Rural –Level Governments (Council Presidents) and representatives of Urban Councils and Authorities from the provincial legislature and prevents them from participating in the legislative process in the Provincial Assembly. The Amendment law also prevents them from holding office as the Deputy Governor of the Province. The position of Deputy Governor is reserved for members of the National Parliament.

13. They submit the amendments are inconsistent with the purpose of the system of provincial governments set up under s 187C of the Constitution and the OLPGLLG which is intended to devolve legislative and executive power to the Provinces. Specific reference is made to Goal No. 2(2), (6),(8) & (10) of the National Goals and Directive Principles (NGDP) which speaks of equal opportunities for citizens to participate in the political and economic affairs of the country, directly or through their representatives, and substantial decentralization of governmental powers to provincial governments and local-level governments, to enable people to be meaningfully involved in matters concerning the government. Reference is also made to reports of the Constitutional Planning Committee (CPC). The amendments offend the principle of power - sharing and broad representation of people in a province in the Provincial Assembly and concentrates power in the National Government through a small number of the members of the National Parliament to the exclusion of local-level governments and urban councils and authorities. By removing the Council Presidents and representatives of urban councils or authorities from the Provincial Assembly, its composition does not consist of mainly elected representatives of people in the provincial legislature. Instead, it consists of only one group of elected representatives and nominated members. The total number of nominated or appointed members, depending on the number of elected representatives, may outnumber the elected representatives, thereby rendering the amendments inconsistent with Constitution, s 187 C(2)(a).

14. Mr Manase referred us to a number of areas where there are difficulties created by the amendments to OLPLLG, s 10 (3) as follows:

(1) Where the members of Parliament for a particular Province hold Ministerial or Vice Ministerial positions, this will severely affect their participation in provincial assembly meetings;

(2) Where members of Parliament for a particular province hold Ministerial or Vice Ministerial positions; it would be impractical to have the same hold the Deputy Governor post;

(3) The dissemination of information and government policies to the local people prior to the amendment was done through Rural and Urban Local Level Government Presidents. With the Amendments; the bridge between the local level government and the National Government has been severed.

(4) The issues affecting the local community were brought to the attention of the Provincial Assembly by heads of Local and Rural Level Government; by virtue of the amendments; this bridge has been severed.

15. They submitted that the provincial government system was established for the purpose of sharing decision-making power between the National Government and Provincial Governments. Its primary aim was not to achieve effectiveness in delivery of services to the people. The main purpose of the proposed Amendment Law as evident from the speech by Mr O’Neill who introduced the bill in Parliament on behalf of the government, was about improvement to service delivery through better coordinated system of service delivery.

16. They submit this reference is about the interpretation and application of s187C (2)(a) to OLPLLG. The matter before this Court is clearly justiciable; it is not precluded by s 187C ( 7).

17. Mr Manase submits the term mainly means more than a majority or comprising more than one half of a thing. In the absence of any provision in the Constitution defining "mainly", he refers to various English dictionary definitions of this word which define "mainly" to mean "for the most part, almost entirely or principally."

SUBMISSIONS FOR THE NEGATIVE

18. Mr Kandi and Mr Mende argued the case for the negative. Mr Kandi who delivered the main address for the negative case also adopted written submissions filed by his client, the Attorney-General.

19. They submit the word mainly means more than one half of the total members of the provincial legislature.

20. They submit nominated or appointed members under s 10 (3) (d)-(f) who are selected for recommendation to the groups or organizations that they represent following some form of internal selection procedures employed organizations or interest groups, do qualify under the term "indirectly elected" in s 187 C (2) (a).

21. In relation to the question of whether it is possible to achieve "a mainly elective legislature", Mr Kandi submits, strictly on a numerical basis, there may be a problem. It appears the number of Local Level Governments in provinces varies from province to province. In respect of a number of provinces the total number of elected members of Parliament may be less than the total number of appointed or nominated members. In a table produced in his written submissions, eight (8) provinces are shown as having elected members of Parliament representing 50% or less of the total members of the Provincial Assembly. He submits however, that any discrepancy can be rectified in two ways. First, the number of nominated members can be adjusted by reduction to ensure the total number of nominated members do not exceed the elected representatives. Secondly, under s 10 (3) (f), the provincial assembly could appoint Rural Council Presidents and representatives of urban councils to fill in the number to reach the required majority of elected representatives.

22. Mr Kandi submits nominated members under s 10(3)(e) could also come under " indirectly elected" representatives because they "are "elected.. indirectly" following the internal selection procedures prescribed by the rules of the organizations they represent. Consequently the operation of s 10 (3) (a) and (e) coupled with (f) would achieve a mainly elective legislature and therefore become consistent with s 187C (2)(a).

23. Mr Kandi refers to the District Authority Act which was enacted by the Parliament before the Amendment Law. That Act set up an administrative scheme to improve coordination of service delivery at the District level. The Act strengthens the work of the Joint District Planning & Budget Priorities Committee (JDP&BPC) established under the OLPGLLG. Under this arrangement the Member of Parliament for the District and Heads of Rural Level Governments jointly work together to bring services to the people at the district and community level. As the members of Parliament and Council Presidents would be involved at the Local Government level in this way, the members of the National Parliament would be well informed to represent the interest of the Rural Level Governments and the community at large in the Provincial Assembly.

24. Mr Kandi emphasized the need to cut down on the financial cost of affording broad participation by Council Presidents and improvements to better coordinated service delivery at the provincial, district and community levels as the reasons to enact the District Authority Act. Parliament then considered it necessary to amend s 10 (3) and s 18 (2) of OLPGLLG in order to give effect to the District Authority Act.

25. Mr Kandi relies on the speech delivered by the Minister for Provincial Affairs, The Hon. William O’Neil, who presented the Bill to amend OLPLLG, s 10 (3) and s 18(2). Mr O’ Neill’s speech is found in the relevant Parliamentary Hansard, as follows:

" .. that in order for us to improve district administration and district services, an authority must take ownership of those issues on the ground...the authority will include the District Administrator, the District Treasurer, Council Presidents of all LL’s (sic) in the different electorates, the member of Parliament as Chairman of the District Authority, the Women’s and Youth Rep and the Business Committee Rep.. this Authority will enable every representative and community interest group to work together with the leaders in order to bring Government Services to the Districts.... The District Authority will enable all types of leadership within the community to work together... we have a current arrangement that most of the Council Presidents, the District Administrators and leaders are all working in isolation and there is no developed co-ordination or whatsoever in the district level. This particular bill is to enable the Council Presidents to perform better part of the District Authority and that this bill will activate that particular Bill. Therefore, I recommend the Bill to Parliament."

26. It is submitted Council Presidents can still contribute effectively at the provincial level through the national member for the open electorate and nominated or appointed members because of the set up at the JDP&BPC or District Authorities established under the District Authority Act.

27. Mr Mende submits the questions as to the adequacy of the number of members under s 187C(3) and devolution or delegation of powers of decision-making in OLPGLLG under s 187C (5) are non - justiciable by virtue of s 187C (7) of the Constitution.

PRINCIPLES OF CONSTITUTIONAL INTERPRETATION

28. The principles of constitutional interpretation are well established in this jurisdiction. In discharging its function of interpreting the laws, the Court must give paramount consideration to the dispensation of justice: Constitution, s 168 (2). The Constitution is a living document, dynamic in character and it speaks from time to time: Constitution, Sch 1.4. Each constitutional law is intended to be read as a whole: Constitution, Sch 1.5(1).

29. In cases where the word or expression used in the Constitution is clear and capable of being accorded its plain or ordinary meaning, then the Court should accord that meaning and apply it to the circumstances of the case before it.

30. But often the Court is asked to interpret a word or expression in the Constitution in which its meaning may be in doubt. The Court must engage in a construction exercise that will produce the correct meaning of that word or expression. The Court must give a fair and liberal meaning to the constitutional provision in question, to ensure that the legislature’s intention, spirit and purpose expressed in the provision is achieved: Constitution, Sch 1.5(2). The Court must adopt an expansive and purposive approach rather than a narrow and restrictive approach: PLAR NO. 1 of 1980 [1980] PNGLR 326, SCR No. 2 of 1992 Special reference by the Public Prosecutor [1992] PNGLR 336, SCR No. 3 of 1986 Reference by Simbu Provincial Executive [1987] PNGLR 151, Haiveta v Wingti (No. 3) [1994] PNGLR 192. The judges are urged to use "judicial ingenuity" in appropriate cases, to do justice": Kearny J in The State v The Independent Tribunal Established under s 27 of the Constitution: Ex Parte Moses Sasakila [1976] PNGLR 491. In a case where there are a number of possible interpretations open, the Court must avoid the interpretation which will or is likely to produce unjust and absurd situations or results. Where there is a gap in a constitutional law which would involve consideration of matters of public policy to fill, the Court must ordinarily defer to the legislature to fill the gap: SCR No. 5 of 1980 Re Joseph Auna [1980] PNGLR 500. However there are those cases in which the law is not so clear and the Court may be required to give an interpretation in order to resolve the matter before it. In such cases, if upon a fair and liberal construction of the constitutional provision, the intention of the Parliament can be given effect to, without usurping the Parliament’s legislative function, the Court must not sigh away from that task because the Parliament can always by subsequent legislative act, correct it if the Parliament feels the Court has usurped its function.

31. In interpreting the Constitution, the Judges may use certain aids. These include the Reports of the Constitutional Planning Committee (Constitution, s 24) and the National Goals and Directive Principles in the Constitution (Constitution, s 25).

32. I apply those principles to the case at hand.

DECISION

33. I agree with Mr Kandi that the application of the amendments to OLPLLG, s 10 (3) the may produce different numerical results for provincial assemblies in different provinces in terms of achieving a provincial assembly constituted by mainly elected representatives compared with nominated or appointed members. The total number of elected representatives compared with nominated representatives depends on the number of elected representatives and nominated members in each province.

34. There are no facts or assumed/hypothetical facts put before us to determine the question in the reference in terms of the application of the Amendment Law to each province. Mr Kandi produced some statistical material in his submissions on the composition of various provincial assemblies but those figures lack detail and proper proof. In the circumstances, it is difficult to express an opinion in terms of the application of the Amendment Law to each province by reference to numerical figures. For these reasons I would not approach the determination of the issue of "a mainly elected legislature" purely by reference to numerical figures. The point may also be non-justiciable: Constitution, s 187 C (4).
35. Counsel for the affirmative appropriately turned to the meaning of s187C (2) (a) as amended in 2006 and its application to the amended OLPLLG, s 10 (3). Such an approach to interpretation of the amended enabling provision of the Constitution and the provisions of the Organic Law in question is proper particularly when the provisions of the two constitutional laws were concurrently altered. Such an approach is not without precedent. For instance in 1995 the Constitution and the OLPG were concurrently altered. When the amendment to OLPGLLG was challenged, it became necessary for the Court to interpret the enabling provision in the Constitution and provision of the Organic Law. I adopt the approach enunciated by Amet CJ in SCR No. 5 of 1995. The learned Chief Justice said:

"The interpretation in this particular case to be accorded the amended s.187(C)(2)(a) is in a rather more unique position than in normal amendments. The unique circumstances of the two provisions under consideration are that the principal enabling constitutional provision was amended as well as the subordinate operational law and provision in the Organic Law having been contemporaneously enacted to give effect to the principal enabling constitutional amendment. I consider therefore that the two pieces of constitutional laws have to be read together to ensure that the purposes and meaning to be ascribed to one or the other and or both is rendered consistent to reflect what is discerned and identified to be the true intention of the legislature. For these reasons therefore it is not practically sensible to approach the task of interpretation of the principal enabling constitutional provision in isolation of the subordinate operational Organic Law provision or provisions".

36. I first deal with construction of various expressions appearing in s 187 C (2)(a) of the Constitution.

37. Most if not all of the words or expressions found in s 187 C (2)(a) which are now in question in this reference were considered and adequately defined by the Court in SCR No. 2 of 1995. In respect to some of the words, counsel before us repeated the same arguments raised by counsel in SCR No. 2 of 1995. For instance the arguments by Mr Manase and Mr Kandi are reminiscent of arguments made by Mr Baker of counsel for the Constitutional Commission in SCR No. 2 of 1995, who argued that mainly in s 187 C (2)(a) does not mean "majority". Mainly means "chiefly" or "for the most part". This argument was rejected by the judges who considered the word mainly. I do not think it is necessary for this Court to redefine those words or expressions. I would simply adopt the meaning ascribed to those words or expressions by the Court in SCR No. 2 of 1995.

38. I am content with the meaning ascribed to those words in SCR No. 2 of 1995 and adopt them. I summarize them hereunder:

(1) . "(M)ainly" means "more" and "mainly elective" " must mean there must be more directly elected members.": per Kapi DCJ.

(2) The phrase "mainly elective legislature" means "the principal assembly seats are chosen by the electorate by vote": per Brown J.

(3) The word "elective" or the expression " elective legislature" means a

representative government in the Provincial Assembly constituted by members elected by the people in an open and free general election conducted in accordance with law to elect members of the National Parliament, members of the Provincial Assembly or members of rural or urban Local- Level Governments or Councils, which are held concurrently or separately: per Brown J.

39. It seems to me that the amendment to s 187 (2) (a) to insert "(elected directly or indirectly) was introduced in 2006 to accord with the interpretation given by the Court in 1995 to the phrase ""An elective or mainly elective provincial legislature." The amendment conforms with the majority view in SCR No. 5 of 1995; that members of the provincial legislature must be elected by the people directly to the Provincial legislature or elected by the people to other legislatures but by virtue of their election to that legislature they become members of the Provincial Assembly, indirectly. Elected members who fall into this category are Members of the National Parliament and Heads of Rural- Level Governments (Council Presidents) and representatives of Urban Authorities or Councils who are directly elected by the people to the National Parliament or Local- Level Government Councils respectively; by virtue of which they become members of the Provincial Assembly. For want of a better term, they are ex officio members.

40. In my opinion, nominated or appointed members of the provincial legislature who become members of the provincial assemblies by methods other than by direct election by the people in general elections under the OLLLGE, do not come within the meaning of "elective (elected directly or indirectly)" in s 187 C(2)(a). Nominated members no doubt would have to go through some form of selection procedures in place adopted by their respective interest groups or organizations in order for them to get selected to be names to be submitted to the appropriate appointing authority specified in OLPLLG, s 10 (3) (d) – (f). Clearly this is not the type of election intended by s 187C(2)(a) of the Constitution.

41. It remains for this Court in this reference to construe the phrase "a mainly elective (elected directly or indirectly), legislature" in s 187C(2)(a) of the Constitution as a whole, as it appears after the 2006 amendment, in the context and purpose of the constitutional scheme of a decentralized system of national, provincial and local level governments. As I have said already, it appears to me the inclusion, by amendment, of the expression " elected directly or indirectly" is in response to the meaning of the phrase "An elective or mainly elective provincial legislature" given by this Court in SCR No. 5 of 1995. The only alteration of importance is the removal of the word "provincial" from s 187 C (2) (a) in the 2006 amendment. The implication of this alteration is, for reasons I will expound later, that it alters the ‘provincial" character of the provincial legislature.

42. The construction of the expression "An elective or mainly elective provincial legislature" in SCR No. 5 of 1995 has made this Court’s task a lot easier. In my view, the meaning of this expression is clear. The words are capable of being given their plain meaning. The purpose of s 187C(2) (a) must be understood from the purpose of the system of provincial and local-level government established in the Constitution commencing with its Preamble and the National Goals and Directive Principles. If there were any ambiguity in the words used in the expression, the Court need not go no further than the prescribed aids to constitutional interpretation found in Constitution, s 24 namely, the Reports of the Constitutional Planning Committee and the debates in the National Parliament on the proposed bills to amend the Constitution to include the provincial government system.

43. A decentralized system of government and its intention and purpose are well published in the CPC Report and canvassed in many judicial pronouncements of this Court and the National Court. My brother Justice Sakora has comprehensively covered the historical background of the system of Constitutional government and the system of provincial government under the Constitution and I adopt them.

44. For my part, I prefer to quote extensively from the CPC Report because that is where the original intention of the people and framers of the Constitution are expressed. Parliament later adopted the report and went on to enact Constitutional Amendment No. 1 which introduced provincial governments in 1975. The amendment is now found in Constitution, PART VIA – Provincial and Local Level Government (S 187A – J) of the Constitution.

45. The purpose of a system of provincial government is well articulated and found in the CPC reports and debates in the Parliament in 1975. Those debates reinforce the clear vision and intentions that the framers of the Constitution had in mind when the idea of a decentralized system of government was first mooted.

46. Provincial governments were introduced to decentralize government decision-making power from the national government to provincial governments. Decentralization is about distribution or devolution of government decision-making power from the central or national government to sub-ordinate governments at the provincial and local community levels. Whilst Parliament remains the supreme law-making authority and prime decision - maker in matters of national concern, provincial and local-level governments were given power to make their own decisions in those aspects of government that directly affected them, in their own unique way.

47. The Parliament was aware of the widespread discontentment on the concentration of government power in the colonial government based in Waigani and a repeat of that occurring after Independence where colonial administrators would be replaced by a national government with centralized government power. Parliament was cognizant of the people’s sentiments expressed through the CPC. In the first paragraph of Chapter 10 of the CPC Report, the CPC stated:

"There is widespread discontent with the present distribution of power in our country, and a deep yearning among our people for greater say in the conduct of their affairs. If the Committee’s recommendation in Chapter 7,‘The Executive’, that the Constitution should explicitly vest power in the people, is to be more than legal rhetoric, then opportunities must be provided for our people to participate meaningfully in those aspects of government that directly concern them".

48. In paragraph 10.8, the CPC stated:

" Power must be returned to the people. Government services must be accessible to them. Decisions should be made by the people to whom the issues at stake are meaningful, easily understood, and relevant. The existing system of government should therefore be restructured, and power should be decentralized, so that the energies and aspirations of our people can play their full part in promoting our country’s development."

49. Parliament accepted the CPC ‘s recommendation made in Chapter 7 that the people are the repository of government power and the Constitution should make a bold statement that this is so, and make adequate provision for the people to exercise part of the government power that specifically concern them at their own level. Under a decentralized system of government, there would occur a decentralization of real government power to the provincial or local government level to empower them to make their own decisions; and that they should not be removed from meaningfully participating in the government process at their own level.

50. The CPC’s recommendation that provincial legislature should be comprised of elected representatives was accepted by Parliament in 1975. In recommending a provincial legislature to be comprised of elected representatives, the CPC stated at Chapter 10/5 at paragraphs 43 – 48:

" Provincial Assembly

43. We have demonstrated that above how important it is that government should not only be decentralized but that it should be brought under political control at the provincial level. We believe it is vital that a body comprising directly elected representatives of the people should be established to exercise that control in each province. It should be called the "Provincial Assembly".

44. The provincial assembly should be the legislative and policy-making body for each provincial government. It should have ultimate control over the performance of each provincial government’s administrative responsibilities.

45. The Committee believes that members of each Provincial Assembly should, in principle, be directly elected by the people. They should be answerable to the people at periodic elections.

46. At present, local government councils are represented on Area Authorities. The people of the various districts are only indirectly represented. The councillors who sit on Area Authorities were chosen to represent their wards at council level. They were not chosen by the people to represent them at the district level.

47. A person who is an acceptable representative at one level of government may be quiet unacceptable at another. Holders of political office at each level of government should be separately elected. It is only as a purely interim measure that we recommend that the Provincial Assembly of s Stage 1 Provincial Government may be indirectly elected, like an area authority, until the first provincial elections after the Constitution comes into force are held.

48. The Constitution should, we believe, make general provision for the establishment of a directly elected provincial assembly in each province. The detailed arrangement should be spelt out in the ordinary legislation."

51. Parliament was clear about the demarcation of power between the three arms of government- legislative, executive and judicial. Whilst the executive and judicial arms of government of the people were vested in the National Executive and National Judicial System respectively to be exercised or performed by persons appointed by the government, the legislative power was vested in the National Parliament and other such subordinate legislatures that the Parliament may, by law, authorize. The legislative power was to be performed by legislatures constituted by elected representatives, elected by the people in compliance with universal requirements of equal suffrage vote and periodic elections under law, and directly mandated by the people to exercise their legislative power.

52. Parliament accepted the CPC’s recommendation for two types of nominated members for the national legislature and the provincial legislature. First, to bring into the legislature "persons either with special qualifications or experience not available among the elected members". Second, to bring into Parliament representatives from particular groups not otherwise represented to ensure they were represented in the legislature: see CPC Report, Ch.6 p.6. They however do not enjoy the elective mandate of the people and they on their own, as individuals or collectively, could not exercise the legislative power of the people.

53. Parliament was also aware of the cultural and ethnic diversity of the people spread over a large land and sea mass with many islands that shaped their societies, customs and traditions. The system of provincial governments augmented well with the rich cultural and ethnic diversity of the people.

54. The Constitution, in its Preamble therefore boldly asserts that "all power belongs to the people – acting through their duly elected representatives". The National Goals and Directive Principles, Goal No. 2 (Equality and Participation), which forms part of the Preamble recognizes the richness of our cultural diversity and calls for equal participation for every citizen in the political, economic and social life in the country and the creation of "political structures that will enable effective, meaningful participation by our people in that life, and in view of the rich cultural and ethnic diversity of our people for those structures to provide for substantial decentralization of all forms of government activity".

55. In this Reference we are concerned with the membership of the provincial legislature. Section 100 of the Constitution vests the legislative power of the people in the National Parliament but also makes provision for any other law to confer law- making power on an authority other than Parliament and for Parliament to transfer permanently, or to divest itself of its legislative power. Section 187 C(1) establishes the provincial legislature within the framework of provincial government system and makes provision for an Organic Law to make provision in respect of legislative powers of provincial governments (s 187 C (6). Section 187D affirms the supremacy of the laws made by the National Parliament and constitutional laws to which laws made by the provincial legislature are subject to. The OLPGLLG makes provision for law making powers – special powers enjoyed by provincial legislatures, those reserved for the National Parliament and those shared or concurrent law making powers.

56. The Constitution and OLPGLLG establish a system of National, provincial and local - level governments that are systematically and intricately linked to each other to serve the people, vast majority of whom live in rural communities. The governments at each level are vested with law-making powers concerning the affairs of the people at their own level.

57. In 1975, Parliament accepted the CPC recommendation that provincial legislatures be comprised of elected representatives and this was reflected in Constitutional Amendment No.1 and the Organic Law on Provincial Governments which accompanied that Constitutional amendment. Following enactment of those laws, elections were held to directly elect representatives to the Provincial Assembly in each province. In 1995 s 187C(2)(a) of the Constitution was amended to allow members who were indirectly elected such as the MPs from each province and Heads of Rural Level Governments and Urban Councils and Authorities who were elected by the people to represent them at the Council level. The "provincial" character of the Provincial Assembly was watered down by the 1995 amendment to the Constitution s 187 C (2) (a) to a Provincial Assembly that largely comprised of indirectly elected representatives, however the provincial legislature retained its elective character. In 2006 the amendment to Constitution, 187 C (2)(a) took one step further in providing for a mainly elective legislature comprising of representatives elected directly or indirectly by the people. The word provincial was removed from s 187 C (2) (a).

58. Under the present Constitutional scheme, members of the National Parliament and members of the Rural-Level Government Council and some members of Urban Councils and authorities are elected directly by the people at popular elections conducted under the OLPLLGE. The heads of the Rural -Level Governments are appointed by the assembly of councils. Therefore members of the National Parliament and members of Rural Level Governments (councils) and Urban Councils are directly elected to their respective legislatures and indirectly elected to the Provincial legislature as provided for by law. They are given the mandate by the people to exercise the people’s legislative power through the respective legislatures to which they are elected directly or indirectly.

59. The executive power of the people is vested in the National Executive Council in the case of the National Government, the Provincial Executive and the executive of Rural- Level Governments. The heads of these are the Prime Minister, the regional member for each province (Governor) and Council Presidents respectively. They are appointed to those positions by the respective legislatures.

60. There is provision made for nominated or appointed members of all three legislatures. They however do not enjoy the elective mandate of the people and they on their own, as individuals or in groups, cannot exercise the legislative power of the people.

61. The legislative power of the people is vested in the elected representatives in those three legislatures, having been so directly vested in them by the people through the exercise of their voting rights. They are directly empowered by the people to exercise government’s legislative power. The legislative power is not conferred on members of the legislature by nomination or appointment under OLPLLG, s 10 (3) (d), (e) and (f). Those members of legislatures who become members by nomination or appointment are by virtue of their appointment participants in the decision- making process in the legislature. As persons who represent a special interest groups or posses special qualifications and experience of importance to the legislature, they are there to assist the elected representatives to make decisions. It follows that elected representatives of the provincial assembly should not be restricted or prevented from performing their legislative function in the provincial legislature by any law that is subordinate to the Constitution. Any law that is inconsistent with these principles which underlie the system of provincial government in Papua New Guinea may be struck down by this Court.

62. In my opinion, the amendment made to Constitution, s 187 C (2) (a) in 2006 do not detract from these basic principles and purposes which underlie the system of provincial and Local-Level governments in Papua New Guinea – that the provincial legislature is an elective legislature, comprised mainly of duly elected representatives who exercise the legislative power of the people vested in the provincial legislature. Section 187 C (2) (a) when read in the context of the provincial government system under the Constitution, implies two essential components of duly elected representatives who constitute the provincial legislature – elected representatives of the National Parliament; and elected heads of Local-Level Governments, urban councils and authorities. Removal of either of those two types of elected representatives from the provincial legislature can alter the elective and provincial character of the provincial legislature in different ways. Removal of members of the National Parliament should not substantially alter the mainly elective and provincial character of the provincial legislature because by the presence of elected heads of rural-level governments and urban councils and authorities in the provincial legislature, the provincial legislature retains those characters. Removal of elected heads of local-level governments and urban councils and authorities from the provincial legislature, however, substantially alters the true character of the provincial legislature as an elective provincial legislature. It reduces the provincial legislature to a legislature that has no representation of the people at the provincial, district or local-community levels through their elected representatives. As a result, the purpose of decentralization under the system of provincial government established under the Constitution is defeated.

63. The expression "mainly elective (elected directly or indirectly) legislature" in Constitution, s 187 C (2) (a) means an elective legislature comprising of elected representatives, whether elected directly or indirectly, who must constitute the greater number or majority of members of the provincial legislature. They, together, must comprise more than the nominated or appointed members. Section 10 (3) of OLPLLG, as it stood before the 2006 amendment met that requirement in that elected members of the National Parliament and elected heads of local-level government and urban Councils and authorities, together, no doubt constituted the majority in the provincial legislature. As a result of the amendment of OLPLLG, s 10 (3), most if not all provincial legislatures in Papua New Guinea will find it difficult, if not impossible, to retain elected members comprising the majority of members in the provincial assembly. Mr Kandi’s argument that heads of rural level governments and urban councils and authorities may be appointed under OLPLLG, s 10 (3) (f) to increase the number of elected representatives to achieve a majority is not supported by the wording of that provision. That provision confers no authority on the provincial assembly to appoint elected heads of the rural – level governments and urban councils or authorities.

64. I agree with counsel for the negative that there were sound economic policy reasons and reasons to do with effective government service delivery that prompted the government to enact the Amendment Law. It can be quite expensive to maintain a large number of rural-level government and urban council representatives in the provincial legislature and this in turn could make service delivery unworkable. It could also lead to duplication of responsibilities at the district and local community level when the districts are already supported by JDP &BPC and a District Authority which comprise of members of the National Parliament and representatives of rural and urban local-level governments.

65. In my opinion however, the framers of the Constitution and the Parliament in 1975 were fully cognizant of the financial burden and government management difficulties that would be attendant on the system of elective provincial government system that was introduced. Their aspirations for a participatory system of government were primarily focused on, and rightly so, government power-sharing between the two tiers of government and they were prepared to commit the young country to the economic costs of maintaining an elaborate and expansive system of provincial governments in which an elective provincial legislature would govern the affairs of the people in the provinces. Since the introduction of provincial governments in 1975, economic policy reasons and reasons to do with effective government service delivery have remained at the forefront of government thinking to reform the provincial government system that has resulted in a gradual decline and now complete removal of elected representatives from the provincial and local-level community areas in the provincial legislature. The irony of it all is that whilst economic costs of running separate provincial elections to elect members to the provincial legislatures and government service delivery difficulties would have been alleviated after the 1995 amendments to s 187C (2) (a) and amendment to OLPG, the same reasons have been now used to remove the only remaining link between the people at the local or community level to the National government through the provincial legislature. Instead, elected members of the National Parliament feature at all three levels of government - National, Provincial and Local-Level Governments (through JDP&BPC and through the District Authorities) - thereby assuming most if not all government power at the provincial level. There is no guarantee that they too will not place untold financial burden on the government and frustrate genuine national government efforts to bring service to the people at the provincial, district and local or community levels.

66. As a result of the amendment to OLPLLG, S 10 (3), the provincial legislature is on the verge of losing its true character as a mainly elective and provincial legislature. It has reduced the provincial assembly to some kind of legislature consisting wholly of elected members of the National Parliament from the province with nominated or appointed members. The removal of the word "provincial" from Constitution, s 187 C(2)(a) is a recipe for the gradual decline of the provincial assembly as a "provincial legislature".

67. The amendment of s 10 (3) of OLPGLLG concentrates law-making power in the hands of only one component of elected representatives and deprives elected heads of rural level - governments and elected representatives of urban councils and authorities from participating in the law-making process in the provincial assemblies. The link between the local level - governments and the provincial legislature and the national legislature has been severed, leaving a wide vacuum in legislative power - sharing at the provincial, district and community level. The Amendment Law concentrates legislative power in the National Government through members of the National Parliament who control law-making power and decisions on important policies both in the National Parliament and in the provincial legislature.

68. The Amendment Law is inconsistent with the meaning, purpose and spirit of Constitution, s 187C 2) (a) and the whole purpose of provincial government system in the Constitution. The Amendment Law effectively removes people at the provincial, district and community level from participation in the legislative process and important policy decisions through the provincial legislature. The Amendment Law is inconsistent with the Constitutional scheme for " devolution and delegation to each Provincial Government and Local-level Government of substantial power of decision-making and substantial administrative powers in respect of matters of direct concern to the province and to the local-level governments" (Constitution, s 187 C (5)). It is contrary to intentions and aspirations of the people, expressed through the Constitution, of a participatory democracy where the people at all levels of the community; in their own diverse way; in all matters that concern them at their own level; are active participants in decision-making at all levels of government; and not mere spectators and recipients of goods and services delivered by the national government.

69. In relation to the amendment to s 18(2) of OLPGLLG, this amendment is consequential to the amendment to OLPLLG, s 10 (3). With the amendment to s 10 (3) being inconsistent with Constitution, s 187C (2) (a), it follows that s18 (2) is also inconsistent with s 187 C (2) (a) in that it prevents elected heads of rural - level governments and urban councils and authorities, who are members of the provincial assembly, from holding the position of Deputy Governor.

70. Further, the amendment to OLPLLG, s 18 (2) concentrates executive power of the provincial government in the National Government in that the office of the Governor and Deputy Governor of the province are held by members of the National Parliament. This is inconsistent with the purpose of the provincial government system established under the Constitution.

71. For the foregoing reasons I would answer the question in the affirmative.

72. SALIKA DEP. CJ: I have read the judgments circulated by my brother judges and agree with their reasons and conclusion. I would also answer the question in the affirmative.

73. SAKORA J: Introduction: The Ombudsman Commission (OC) [1] comes pursuant to s 19 (1) Constitution, making an application under a special reference for this court’s opinion on the validity of ss 1 and 2 of the Organic Law on Provincial Governments and Local-level Governments. [2] Under this constitutional provision, certain specified authorities under sub-s (3) are entitled to apply [3] and seek the opinion of this court on "any question relating to the interpretation or application of any provision of a Constitutional Law, including (but without limiting the generality of that expression) any question as to the validity of a law or proposed law." The OC is one of the nine (9) categories of such prescribed authorities, all of which are either constitutional offices/office-holders, or institutions established pursuant to the Constitution.

74. The questions posed for this court’s consideration and opinion relate to the effect(s) of the amendments made to s 10 (3) (b) and (c) of the Organic Law. Sections 1 and 2 of the 2006 Organic Law on Provincial Governments and Local-level Governments (Amendment N.10) Law [4] ushered in changes that are contended to have drastically altered the concept and very nature of provincial government system in the country by, firstly, altering the nature and composition of a Provincial Assembly, and, secondly, the office of Deputy Governor of a province.

75. In this respect, and pursuant directly to the nature of the jurisdiction vested in this court by s 19 (1) Constitution, the question is asked: do these changes offend against, and are, therefore, contrary to s 187C(2)(a) of the Constitution, which, it is contended, intended and envisaged a provincial legislative assembly composed of an "elective or mainly elective legislature"? And, thus, it is argued, the Amendment Law, effectively removing the heads of rural local-level governments [5] from membership of Provincial Assembly (PA), and likewise the one representative from the heads of the urban authorities and councils,[6] and, finally, disqualifying these elected rural and local leaders of the people from contesting the Deputy Governor’s post, was unconstitutional and, therefore, not a valid law.

Background

76. The circumstances surrounding the bringing of this reference, the brief recital of the constitutional history of provincial government system,[7] and the discussion of the various issues and arguments put before this court have been, with respect, sufficiently accounted for in the judgment of the Chief Justice which I have had the opportunity of reading in draft form. I am in full concurrence with the answers the learned Chief Justice gives to the issues raised and questions posed, and the reasons for these. I have also had the benefit of reading the judgments of my brothers Justices Gavara-Nanu and Kirriwom, who have come to the same conclusions about those questions and for similar reasons.

77. In my brief concurring judgment here, it is my intention merely to add a few comments and observations by way of emphasizing those conclusions and reasons. And I do so, firstly, by noting the constitutional history of the type of devolution system that was adopted for our country, and the constitutional scheme under which it was intended to operate, and the reasons and impetus for this. Secondly, I offer brief observations on the effect(s) of the amendments in question here, by reference to why the provincial government system, the devolution option, was settled upon by the constitution-makers.

The Scheme of the Constitution

78. At the outset, I wish to acknowledge that my brief discussion on this aspect relies and borrows heavily, with respect, from my own judgment in this court’s 2007 unanimous opinion in the multiple applications [8] in respect of the challenges taken to the National Executive Council’s (NEC) declaration of a State of Emergency in the Southern Highlands province [9] purportedly under s 228(1) of the Constitution.

79. Part of the Preamble to the Constitution acknowledges the establishment of this sovereign state by the people of this country: We, The People. . . (and declares). . . ourselves, under the guiding hand of God, to be the Independent State of Papua New Guinea. And by virtue of that authority it was asserted that all power belongs to the people - acting through their duly elected representatives. Thus, those institutions and authorities which exercise State powers, be they legislative, executive or, indeed, judicial, owe their existence (and justification for such) and legitimacy to The People.

80. The Preamble also acknowledges the autochthonous nature of our constitution. It was a "home-grown" constitutional document, not one "made in Canberra" or anywhere else.

81. To emphasize that all of these powers have their origin and source from The People by the very fact of the constitutional acknowledgement, s 11 Constitution declares the supremacy of the Constitution and the Organic Laws in the following terms:

11. CONSTITUTION, ETC., AS SUPREME LAW.

(1) This Constitution and the Organic Laws are the Supreme Law of Papua New Guinea, and, subject to s 10 (construction of written laws)all acts (whether legislative, executive or judicial) that are inconsistent with them are, to the extent of the inconsistency, invalid and ineffective.[10]

82. Thus, under our Constitution, parliament and indeed the executive arm[11] do not possess unlimited legislative powers. They do not possess "open cheques", as it were, in relation to making laws of the country.

83. Ours is a unitary state, as opposed to a strict federal system[12], thus organized under a single central government. This is so even with the type of devolution of powers that was adopted through the provincial government system under Part VIA of the Constitution.[13] At independence, we adopted what can be described as a "modified version" of the Westminster model of parliamentary executive government system, "allowing for representative and responsible government, and a cabinet system."[14] The representative nature is declared in the Preamble,[15] with the duly elected representatives being mere delegates of We, The People, driving home the notion and strong message that the government is to be "by the people, and for the people".

84. This parliamentary government system is an important feature and hallmark of modern democratic states. And the ubiquitous terms parliament or parliamentary, when used to described the form and nature of a governmental system, capture the very essence of what a legislative body is for or should be for in a democracy. The term parliament itself is derived from the Latin/French meaning ‘to speak’ or ‘to discuss’. That is why any gathering of people’s representatives in a formal way, to conduct the serious business of the country, described in a multitude of ways such as assembly, chambers, council, house, senate, in order to merit the epithet of ‘democratic’ must be ‘deliberative’. And the dictionary definition of the verb ‘deliberate’, from which the adjective ‘deliberative’ comes from, is: to think over or discuss carefully before reaching a decision.[16] A very authoritative legal lexicon [17] defines it in the following ways: To weigh, ponder, discuss, regard upon, consider. To examine and consult in order to form an opinion. To weigh in the mind, to consider the reasons for and against., to consider maturely., reflect upon, as to deliberate a question., to weigh the arguments for and against a proposed course of action.

85. Inherent in and the common thread running through these definitions, in relation particularly to a national parliament, the highest political forum in the land, is the notion and, thus the expectation, that it should never be a‘rubber stamp’ of or for the executive, and that any legislative programme of the executive should be subjected to the closest scrutiny. No legislation should, therefore, be, colloquially speaking ‘steamrolled’ or ‘bulldozed’ through parliament without debate. The point is emphasized by respectfully citing from a little booklet on The Commonwealth Parliament [18] as follows:

Parliament itself originated as the body of counsellors of the early English kings. It is a characteristic of some systems of government, however, that decisions are discussed in public in a large assembly representative of the whole community. The greater the number of people who participate in decision-making, the more essential it is that decisions are discussed in large open forum.

Thus there is a close connection between democracy, the participation of everybody in decision-making, and open debate, because only by such debate can the views of a large number of people be heard and noted. Therefore the rise of democracy in modern times is also the rise of parliaments.

86. This very useful booklet cites from a statement by an Athenian statesman, Pericles, which I respectfully reproduce here, as I consider it to be pertinent to this discussion, and very succinct:

We Athenians make decisions for ourselves, or at least participate in the full discussion of them: for we do not regard debate as a barrier to effective action, but as a necessary condition for acting wisely. [19]

87. As described above, one important feature of our constitutional governmental system is that our executive is a parliamentary executive, a basic tenet of responsible government. This is intended to ensure that the ministers and the head of government who collectively constitute or compose the cabinet, are made responsible and accountable to the people through their duly elected representatives in the legislature, the members of parliament not in cabinet.

88. Apart from the periodical [20] direct accountability to the people, the voters, that is always possible through regular parliamentary elections, accountability to parliament is intended to be and facilitated by the parliamentary devices of Motions of No Confidence[21]or Censure Motions moved and debated publicly, and questions asked for answers on the floor of parliament.

89. The Parliament in whom the people’s legislative, law-making power and authority are vested, therefore, is one of the traditional and formal institutions under the Westminster system for supervising and controlling the exercise of executive power. This power of parliament is so important in a unicameral legislature such as we have. Bicameralism is characteristic of most important developed states today, and invariably those with elaborate federal systems of government, as found in, for example, the United States, Australia and Canada. The existence of a second chamber of parliament in these federal states, amongst other things, prevents the passage of precipitate and ill-considered legislation by single house or chamber.

90. That the sense of "unchecked power" on the part of a single chamber such as we have here, especially where the Opposition is oftentimes ineffective and/or inefficient, and outnumbered [22] by the government, and thus conscious of having only itself to consult, may lead to abuse of power and indulging in tyranny. And this obviously undemocratic state of affairs is or can be magnified for the worse in situations where such "direct popular checks" by the electorate [23]as referendum, iniative and recall are absent from our constitutional scheme.[24]

91. It may have been because of fears of perceived shortcomings of a unicameral parliamentary chamber, with no upper house of review such as a senate,[25] that the Constitutional Planning Committee (CPC) considered ways and means of resolving constitutional disputes, and eventually settled upon vesting such a jurisdiction on the Supreme Court.[26] It is instructive to reproduce hereunder what the Committee said (at paras. 141 and 142):

141. We have proposed in preceding chapters that several institutions in the country have a general responsibility to see to it that the Constitution is respected. Both the Prime Minister and the National Parliament should, we believe, have important roles in this respect. Political parties and other pressure groups and educational institutions have both an interest and an obligation to ensure that the Constitution is not flouted. We do not under-estimate the importance of these institutions, and indeed wish to state that in our opinion the specialized institutions and procedures we recommend will be truly effective only if they are supported by these general institutions and public opinion. It is, however, also our view [p.15] that it is necessary to provide for bodies especially charged with enforcement of the Constitution through the resolution of disputes.

142. One of the commonest ways to enforce the Constitution and resolve disputes is through the jurisdiction of the courts. The courts are given the power to interpret the Constitution and their rulings are authoritative and binding on other institutions. We have given careful thought to the advantages and disadvantages of a primary reliance on courts for the settlement of constitutional disputes.

92. It is a truism that modern governments wield considerable power. And in this, they can and do become intrusive, invasive and overbearing. Whilst the crucial legislative function in modern government is well acknowledged, the growth of government has resulted in the legislature being overshadowed by the executive branch, armed with multiple functions and responsibilities, that are accompanied by all manner of discretionary powers that, in turn, necessitate increased or enlarged bureaucracy to implement the decisions and policies of the government. Modern executive business of government is, therefore, concerned not only with executing laws, but also with, in many cases, initiating policies to be sanctioned by the legislature through the adoption or passage of the necessary enabling legislation.

93. Democratic constitutions are, therefore, concerned with the allocation of state power and the control of its exercise. The concept or doctrine of the rule of law is concerned with the latter. And this doctrine is by no means of recent origin bandied about by advocates of liberalism and liberal democracy. Ancient Greeks were aware of it, such that Aristotle was able to state that "the rule of law is preferable to the rule of any individual". Taken in its broadest sense, what this means is that people should obey the law and be ruled by it. But in political and legal theory it has come to be read in a narrower sense, that the government shall be ruled by the law and be subject to it.[27]

94. The oft-uttered phrase, government according to law means that the executive or any civil authority or governmental official cannot (or should not) exercise a power unless such exercise of it is authorized by some specific law, and remains within the parameters of that law. This supremacy of the rule of law is sometimes described by the use of the term constitutionalism, a notion of government vested with powers whose exercise are controlled or limited by the law itself. It means and demands that the exercise of such governmental powers shall be conditioned by law and that the subject (the citizen) shall not be exposed to arbitrary will or whims of his ruler.[28]

95. Constitutionalism, in seeking to limit the powers of government and protect the rights of the governed, has defined the executive arm of government, and confined it within proper grounds or parameters. As to the dimensions of the control of the executive to protect human rights, in the PNG context, there is a useful discussion by Dr APW Deklin in his article: Control of the Executive.[29]

96. Thus the notion or concept of government according to law [30] was the basis of the concerns and sentiments expressed widely in the consultation process undertaken by the CPC that found expression in its Reports, and eventually becoming part and parcel of the our constitutional scheme, though initially the Independence Constitution contained no provision on provincial government. And in relation particularly to subsequent inclusion of the provisions on the establishment of the provincial government system,[31] the CPC Report [32]devoted an entire chapter on the subject.[33]

97. These concerns and sentiments had everything to do with the colonial experience. It has been said that the system of decentralization that was touted during the wide consultation process undertaken by the CPC was the practical outward expression of an intention and desire to "escape from the benevolent dictatorship of the centralized colonial administration." The emerging leaders of the country had had no long-term experience with or awareness of formal representative system of government [34]

98. The only real experience these young leaders would have had up to that time would have been of being victims (or knew people who were or had been) of a classical colonial state that was absolutist, "so influential over their lives, so powerful in its economic and social structures, and so insidious in its fostering of dependence among them . . . ".[35] In this autocratic and repressive milieu, all power stemmed from the governor or administrator, acting upon instructions from his metropolitan superiors in Canberra, Australia.[36]

99. The nominated and appointed members of the two legislative councils were merely advisory in nature and capacity. Even the Ordinances [37]that were passed in the two territories were reserved for the (Australian) Governor-General’s assent in Canberra before it came into force and effect in the territory concerned. Thus, within the territories, "neither the white community nor the colonised, is endowed with political rights . . ."[38]

100. Thus this ‘top-downwards’ chain of authority was very much untouched and uninfluenced by any notion or principle of representation or consultation. The basis of most modern democratic constitutions is representation. The 13 American colonies which staged the revolt against the distant British government rule, leading to the 1776 Declaration of Independence had its genesis in their lack of representation in the British parliament. This situation was exacerbated by the imposition of tax on the colonies

101. With respect, the following extract from Amarshi {et al).,boldly but succinctly describes the colonial state and all that it entailed and stood for in the following terms:

Political rights for Papua New Guineans, it need hardly be stressed, found no place in this colonial scheme of things. A people who were regarded as incapable of fending for themselves except in a subsistence setting were hardly to be seen as having the potential to participate in their own governance, whereas the Australian administration was only too ready to provide the wise guidance and leadership which they lacked. Until the 1960s, Papua New Guineans were confined to having their wishes and aspirations interpreted for them either directly by Australian kiaps or indirectly by Papuan village constables and New Guinean luluais and tultuls appointed by the administration and empowered solely to carry out administrative decisions delegated to them. [39]

The Provincial Government System

102. Part VI A of the Constitution was inserted by Constitutional Amendment No.I [40] pursuant to the combined effects of ss 14 and 15,[41] and the brief provisions contained in the ten (10) sections [42] very much reflected the recommendations of the CPC on decentralisation along the same geographical lines as the former colonial districts. These provisions provide what Goldring describes as "a bare outline of the structure and functions of the provincial governments. . . ",[43] leaving it for the Organic Law on Provincial Government to deal with "detailed provisions relating to powers, functions, and finance of provincial governments"[44].

103. A very brief journey back to those politically and emotionally heightened days, by way of summary here will, I respectfully suggest, set the scene, as it were, for my brief comments on the issue(s) raised by the subject amendment.

104. Upon the inauguration of joint administration of the two formerly separate territories of Papua and New Guinea, following the restoration of civilian administration after the second world war [45], the Australian colonial administration introduced elected local government councils from the 1950s onward.[46] The aim of this new development was said to be:

. . . in order to socialize indigenous population for Westminster-style politics and as an early incremental step to the latter’s assumption of full political responsibility.

105. By 1964 the local government system had barely covered half the country. That was the year when the first national elections were conducted to select members for the newly-established unicameral House of Assembly.[47] Further elections for the House followed in 1968 and 1972, which developments ushered in the increasing reduction in the number of nominated or appointed members, with a corresponding increase in the number of elected members.

106. Legislative assemblies called councils had been in existence in the two territories before the amalgamation after the Second World War.[48] These could hardly be called elected legislatures, simply because they were composed mainly of nominated and appointed members. A large part of the appointed membership was drawn from the ranks of the government officials. Nominated members represented white sectional interests such as planters, traders, miners, and missionaries. It was only from the 1950s onward that a select few "natives" were nominated to the one legislative council inaugurated in 1951. As with the pre-amalgamation colonial legislatures, the unified legislative council was dominated by senior white public servants, at the departmental and district administration levels [49] who were the appointed "official members".

107. An Administrator appointed by Canberra was in charge in the combined territory, with duty to administer the government of the territory on behalf of the Commonwealth of Australia. The Administrator was assisted by an Executive Council of not less than nine (9) officers of the territory. The 1951 Legislative Council, pursuant to the 1949 Act,[50] was to consist of the following:

• Administrator
• 16 officers of the territory
• 12 unofficial members (3 elected & 9 appointed on the nomination of the Administrator)
  

108. The three (3) non-official elected members were racially confined to white voters for white candidates, in three regional electorates (one each for Papua, mainland New Guinea, and New Guinea Islands). The nine ((9) appointed members were made up of: 3 representing the Christian Missions; three(3) natives (from the same 3 regions used for elected white members); and, finally, three (3) others representing the planting and commercial interests (which automatically would exclude any natives). Thus as recently as 60 years ago, the entire native population of the country was represented in the legislative council by only three (3) nominated/appointed members [51].

109. It was not until the 1964 House of Assembly, ushering in universal suffrage that the indigenous population were introduced to and participated in representative democracy. The progressive diminishing of the numerical strength and dominance of official members began then, with 54 elected members that eventually reached 109 members (89 open and 20 provincial) after the first post-independence elections in 1977. This number obtains to this day. By the 1982 elections 19 provincial governments and one (1) urban government had been elected into power.[52]

110. Chapter 10 of the CPC Report [53] at the very outset declares the attitudes and sentiments of the people on the eve of self-government and independence in the following way:

1. There is widespread discontent with the distribution of power in our country, and a deep yearning among our people for a greater say in the conduct of their affairs. If the Committee’s recommendation in Chapter 7, "The Executive", that the Constitution should explicitly vest power in the people, is to be more than legal rhetoric, then opportunities must be provided for our people to participate meaningfully in those aspect s of government that directly concern them. The recommendation we make in this chapter are designed to provide such opportunities.

2. When the Europeans first settled in Papua New Guinea, they did not find a political vacuum on the shores and plains, or in the mountains and valleys, of our islands. Our ancestors lived and worked in communities- villages, hamlets, clans and tribes- with their own forms of social organization, appropriate to their needs. However, colonial rule has had an important impact on the character and lifestyles of our people. It placed new requirements upon them, it ignored, or opposed, or sought to alter, our traditional forms of social organization without proper consultation with our people. It deprived us of self-government, and even of self-respect. The proud independence of our local communities was replaced by dependence- upon the all-powerful representative of the colonial government, the kiap.

3. Colonial rule has brought peace between once-warring communities, roads and other forms of material progress. But the price of these changes has been the establishment of a system of government that has not made adequate provision for local initiative.

4. Nonetheless, our people have demonstrated an outstanding capacity to endure and tolerate the oppressive. And paternalistic policies of successive colonial rulers. The aspirations that underlie the discontent and yearning referred to in the opening sentence of this chapter provide a sure sign that their will has not been broken. But, the system of government that is Australia’s legacy to us provides no real outlet for these aspirations.

111. It is under this background that the CPC made the recommendations for provisions to be made for provincial government system in the Constitution. Its exclusion or omission from the Independence Constitution was at the insistence of the Government.[54] When The CPC under the deputy chairmanship of John Momis tabled the Final Report [55]in 1974, a Minority Report [56]was tabled also. Before the Independence Constitution had been adopted by the House of Assembly on 16 September 1975, there had been rumblings from certain regional groupings about their own self determination and other grievances. For instance, the Mataungan Association on the Gazelle Peninsula formed in 1969 sought accelerated autonomy from the colonial administration. Earlier the Tolais had resisted paying the head tax that had been imposed on them by the local government council. Later dissension and difficulties arose as a result of attempts to convert the Gazelle Local Government Council into a multiracial body.

112. On the Papuan side, Josephine Abaija took up the cause of Papuans, and was campaigning under the banner of Papua Besena [57]to prevent the Papuans from being bulldozed into political independence with New Guineans. Papuans were said to want a separate independence, a continuing grievance emanating from the 1949 administrative union with New Guinea. Meanwhile, the people of Bougainville were agitating for separateness, threatening secession and had proceeded to a unilateral declaration of independence[58].

113. When the coalition government took the Independence Constitution to New York, the UN General Assembly readily accepted it, and, thereby rejected the micro-nationalist regional movements and their declarations.

114. It may have been due to the fear of fragmentation, as threatened by these micro-nationalist agitations that Part XVIA Constitution was inserted, giving practical expression to the wishes for a decentralize system of government. It was not intended to create a federal system in the traditional sense. The insertion also gave reality to some of the sentiments contained in the National Goals and Directive Principles (NGDPs) in the Preamble to the Constitution, specifically in relation to the need for Equality and Participation [59]. With the second National Goal declaring all citizens "...to have an equal opportunity to participate in, and benefit from the development of our country" setting the scene, as it were, called for:

(1) an equal opportunity for every citizen to take part in the political, economic, social, religious, and cultural life of the country.,

115. These various identified activities or opportunities for equal participation were of course faithfully reflected in the various provisions of the Constitution, one very important one, that of the political life of the nation, being the Right to Vote and Stand for Public Office. This is a "Special Right of Citizens" included in the part of the Constitution dealing with and making provisions for "Basic Rights". Section 50 (1) is in the following terms (omitting parts not necessary for our present purposes):

(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who –

• (a) . . .
  
• (b) . . .
  

has the right, and shall be given a reasonable opportunity –

(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives., and

(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections, and.,

(e) to hold public office and exercise public functions.

116. The "original" provisions in the Constitution had s 187 C (2) in the following terms:

(2) For each provincial government, there shall[60] be established –

• (a) an elective, or mainly elective, provincial legislature with such powers as are conferred by law., and
  

117. The 1995 changes to the Constitution and the Organic Law on Provincial Government resulted in the passing of the Organic Law on Provincial Governments and Local-level Governments (OLPGLLG). The resultant nature and composition of a provincial assembly have been adequately canvassed in the judgment of the learned Chief Justice that I find no need to add anything to. And this court was asked to consider these changes, and the court (by a majority of 4-1) spoke on them.[61] All I wish to say about the majority decision or opinion is that it confirmed the first dilution of the elective nature of a provincial assembly, as mandated by s 187C(2)(a) Constitution.

118. The "original" Organic Law had the national members of parliament included in the membership of a provincial assembly as ex officio members. They were there by virtue of their holding a public office already; they were not and had not been "directly" elected to a provincial assembly. Thus, their membership (ex officio at that) of the provincial assembly could not and cannot properly be characterised or described as being "indirectly elected" as the submissions of the Attorney-General would suggest. Their election to the national parliament for a particular national constituency [62] was attended by very different considerations, in my opinion, than the election of councillors from a particular local government area whose president went to the provincial assembly as a member. Electors at the rural grassroots level in a particular local government area went to the polls to vote for their leaders to constitute the local-level government, from which and head of which government they would have as their own representative in the provincial assembly [63].

119. When these selfsame electors went to the polls to elect their national member of parliament to go and represent them in "remote" [64] Waigani, they would not have been contemplating that he would represent them in the provincial assembly at, for example, Madang town. And, in any case, they would have been competing with electors from other local government areas to elect a representative to the national parliament.

120. It is my respectful opinion, therefore, that no amount of repetitive use of terms such as ‘contemporaneous’ or ‘ simultaneous’ elections [65]alter the very fact that elections to the local-level governments are different in scope and purpose to the elections for the national parliament, even if the two elections are conducted simultaneously.[66] And these different representatives are bound to have different agendas, though in the end, it would be the legitimate expectations of their electors that they (the different representatives at the two tiers of government) would have the interests and welfare, not to mention wellbeing, of the constituents and constituencies at heart.

121. In my considered opinion, the "original" Organic Law lived up to and faithfully reflected the intention of s 187C(2) Constitution and maintained the elective nature of a provincial assembly. Electors in various wards elected their representatives directly to the provincial assembly. And as is the tradition and custom of ‘parliaments’, a gathering of all these ward members, by deliberative process, elected amongst themselves a ‘premier’, the head of their government at that provincial level. And the national parliamentarians were members of these assemblies, not by direct election (to the assembly) but as ex officio members. Very simple, able to be understood and universally accepted, uncomplicated and unencumbered by the usual jostling and maneuverings of party politics, not to mention jealousies between national and provincial members.

122. Then the unhealthy process of dilution of the concept of provincial governments began. First, with the removal of the premier and the installation of a member of the national parliament as head of the provincial government, described by the lofty title of "Governor". This is quite unique in constitutions modelled on the Westminster parliamentary system. And more particularly in a unitary state such as ours, as opposed to a federal system. It should be noted that, in the American federal system, state Governors are universally elected by the voters of the state in question. And they hold no other public office, either at the state level or in federal government in Washinton DC as members of either the House of Representative or the Senate, nor member of a president’s cabinet in executive government at the White House. Because both Australia and Canada [67]are ‘monarchies’, the Queen’s representatives in the states are known as ‘Governors’ and they are appointed, and exercise no executive powers of their own. The heads of governments of the various states (Australia) and Provinces (Canada) are ‘Premiers’, and they are elected, needless to say, in the same manner as our former ‘Premiers’ in the provinces under the "original" Organic Law.

123. Another comparative study of note is that in none of the representations in the US, Australia and Canada, do leaders at the national level hold any elective or appointed, or indeed nominated, positions at the state or provincial levels. There are very good reasons for these, not least of them being the reluctance to have people’s representatives holding multiple public offices at the same time. And this reluctance has its own good reasons that are firmly based on concepts and ideals of democracy and its ancillary notion of constitutionalism. Our Constitution s 101 provides for the constitution/composition of the national parliament in the following terms:

101. MEMBERSHIP

(1) Subject to this section, the Parliament is a single –chamber legislature, consisting of –

(a) a number of members elected from single-member open electorates; and

(b) a number of members elected from single-member provincial electorates; and

(c) not more than three nominated members, appointed and holding office in accordance with Section 102 (nominated members).

(2) An Organic Law shall make provisions for the number of open and provincial electorates.

(3) No member may represent two or more electorates at the same time.

(4) The precise number of open electorates and of provincial electorates and their boundaries shall be determined from time to time in accordance with Section 125 (electorates).

(5) An alteration to the number of electorates or to the boundaries of an electorate takes effect for the purpose of the next general election and of succeeding elections.

124. Subsection (3) is very pertinent here.

125. The next step in this what appears to be a deliberate dilution process was of course the 1995 amendments. It is my considered opinion that the dissenting opinion of the then Deputy Chief Justice [68]did express the correct law on the changes ushered in by the then s 10 of the Organic Law. [69] The then Deputy Chief Justice explained the effect(s) of the amendments in terms I totally and respectfully agree with, and respectfully reproduce them hereunder:

It is immediately clear that all categories of members provided here become members by virtue of some other office (s 10(a),(b)), or representative of some other level of government (s 10(c)) or appointed by the Provincial Executive Council (s 10 (e)) or appointed by the Provincial Assembly (s 10 (f)). None of these members are directly elected by the people as required by s 187C (2) (a) of the Constitution. In essence no election is conducted for the membership of the provincial legislature. Section 10 of the proposed law [70]is clearly inconsistent with s 187C(2)(a) of the Constitution and therefore invalid.

126. If that was the result or effect of the 1995 amendments, which I agree it was, then the 2006 changes through the Amendment Law which is before us for our opinion, put the final touches [71] to the complete dilution, and emasculation, of decentralization of powers as originally envisaged and expressed through s187C(2)(a) Constitution. The "original" Organic Law was legislated and promulgated on the authority of s 187C(2)(a) which mandated in an imperative way, the establishment of an elective, or mainly elective, provincial legislature. The 1995 amendment inserted the terms elected directly or indirectly, ushering in the result or effect that the then Deputy Chief Justice, in my respectful judgment, properly and correctly characterised and concluded, in his dissenting judgment. And no fanciful use of terms such as ‘contemporaneous’ or ‘simultaneous’ can (or could then) detract from the fact that there was an emasculation of the spirit and intent of the serious constitutional provision reflecting the well-documented wishes of the people.

127. Nor, indeed, by what I would characterise as mischievous use of words to suggest, as the submissions of the Attorney-General does, that ‘nominated’ or ‘appointed’ means ‘elected’, either directly or indirectly on the basis that the person who nominates or appoints another was himself elected.[72] This type of illogic pretending to be deductive reasoning ignores the real meaning of the term ‘elective’ as used in s 187C(2)(a) Constitution. In the process, there is also a misunderstanding of the meaning of the terms ‘nominate’ and ‘appoint’ as popularly understood in common parlance as well as in constitutional law.

128. Finally, it is my considered judgment that this type of what I would call legal gymnastics result in statements such as: ‘I do not consider that it is wrong in principle to have the one person holding several public offices concurrently by virtue of one elective (sic) process’.[73] I agree with the learned Deputy Chief Justice’s conclusion that the Constitution intended a ‘directly elected’ provincial legislature, enabling all citizens to exercise their rights under s 50. To ascribe a meaning to the constitutional term elective by the mischievous use of the phrase elected directly or indirectly is, in my judgment, a fanciful indulgence in yet another legal gymnastics that does nothing except to devalue, diminish and trivialise the seriousness and importance of a constitutional mandate.

129. I cannot help but be reminded of the long struggles English parliaments had with their absolute monarchs, culminating in the Civil Wars in the 17th century that witnessed the execution of one king,[74]government under Oliver Cromwell’s Commonwealth, and the eventual restoration of the monarchy,[75] that ushered in with it notion or doctrine of the supremacy of parliament. Thus, parliament became, for all intents and purposes, the central actor in English politics. Representation was then deemed vital for the monarch to justify raising revenues for government. Indeed, "taxation without representation" was considered inappropriate.

130. It will be recalled that "no taxation without representation" was the banner under which the original 13 American colonies declared their independence from England in 1776, leading to the American War of Independence that took seven (7) years to fight. The colonies had been dissatisfied and discontented with legislation passed in the English parliament that imposed financial burdens on them when they had no representatives in that distant unaccountable (to them) parliament: firstly, the Stamp Act of 1765 that was imposed on legal documents used in the colonies; and, secondly, the duty that was imposed on tea (exports) from the colonies. The famous [76] "Boston Tea Party" in 1773 when a cargo of tea in a ship bound for England was raided and tea dumped overboard into Boston harbour was one incident of protest against the taxation without representation.

131. Representative and responsible system of government, a vital ingredient for achieving democracy, has had a truly long and chequered history. And in the space of 30 or so years we want to undo all that had been accomplished over the centuries?

132. Lord Hailsham, a former Lord Chancellor of England, wrote in 1978 what he coined the elective dictatorship to express his doubt as to whether the British system of government at the time was creating the conditions for responsible government.[77] It is instructive to cite an extract from his Lordship’s book, to emphasize the point:

It seems to me that this is a situation the reverse of liberal and even the reverse of democratic, in the sense in which the word has hitherto be understood. Fundamental and irreversible changes ought only to be imposed, if at all, in the light of an unmistakable national consensus.

. . . so far as regards permanent legislation, the will of the majority will always prevail against that of the party composing the executive for the time being, and that, whoever may form the government of the day will be compelled to follow procedures and policies compatible with the nature of Parliamentary democracy and the rule of freedom under the law.[78]

Conclusion

133. As indicated earlier, I concur with the conclusion of the Chief Justice and that of my other two brothers that the latest amendment (2006) to s 10 is inconsistent with what was intended and envisaged by our Constitution makers under s 187C(2)(a). The elective nature of a provincial assembly membership has now been unconstitutionally and drastically changed, such that there is a reversion to the colonial absolutist regime and its legislative councils that the numerous public debates and submissions to the CPC were seriously concerned about. A colonial state with a highly centralised bureaucratic government and legislative chambers dominated by government officials answerable only to "Canberra" has been, in my opinion, recreated some 30 years after independence. This recreation has meant domination of provincial assemblies by national Members of Parliament (MPs) who happen to be in government. And the nominated and appointed members of the assemblies would owe their membership to whoever enjoys the power to have the last say on such nominations and appointments.

134. The CPC recommendations reflected in the NGDPs, s 50 Constitution and the "original" Organic Law have now being abandoned by the 2006 Amendment Law. The real concerns of the people (and their emerging leaders[79]) prior to and during the period of constitution-making, about the ills and evils of the colonial state, with its highly centralized and bureaucraticised government are now revived and restored. We have retreated, by these changes, from the spirit and intent of the concerns and aspirations of the Constitution. The majority of the people in the rural areas will continue to be, as before, without any real say in matters and affairs that interest and affect them directly and intimately. They will continue to wait for the remote national government to become interested and involved in their concerns and problems.

135. Another unhealthy result of the changes is and will be the vesting of multiple powers in the hands of national MPs. And if these happen to be in the ruling party (or coalition of parties) in government, then we will have concentration of power(s) in the hands of a few. The means to this end through the use of the legislative powers of the people is very much analogous to what is known in party politics in developed countries as "stacking the branches." This is a device employed to have like-minded people in party branches to ensure a particular party policy gets approval or a particular candidate gets endorsement for an election.

136. Recipe for doing things undemocratic, to the great injustice and detriment of the people of this country, is ever present with the Amendment Law. There is a very pertinent advisory, or lesson to be learnt, from a quotation the learned author of The Constitution of Papua New Guinea[80] uses to introduce his valuable text. And I respectfully reproduce it hereunder:

Because the law is the expression of social needs, a system of law is a description of the society for which it is made."

137. If it is intended by legislation to rid ourselves of representative forms of government, at the local and national levels, would anyone hearing about or reading these laws be entitled to think that we had, or were in the process of, dismantling and abandoning our democratic system of government, and opting for absolutism, autocracy or dictatorship?

138. It is always easy to find excuses to avoid the difficult questions, and take the line of least resistance. Instead of a co-operative and consultative relationship between the national government and provincial governments for the common good, as was the intention of the constitution-makers, there has always been friction and internecine disputes. Jostling for power, influence, prominence, not to mention individual popularity (of members of the two tier governments) has often led to actions and decisions that are (and have been) inimical to good governance. And the ordinary people, citizens of this country, are always the innocent victims.

139. There have been justifiable concerns and complaints about the administrative and financial capacity and integrity (or lack of) of provincial governments. And these have led to the national government availing of its power to suspend those erring and errant governments pursuant to s 187E Constitution. And there have been many suspensions for cause since independence.

140. Section 187E is in the following terms:

(1) Parliament may, by an absolute majority vote, suspend a provincial government if –

• (a) there is widespread corruption in the administration of the province; or
  
• (b) there has been gross mismanagement of the financial affairs of the province; or
  
• (c) there has been a break-down in the administration of the province; or
  
• (d) there has been deliberate and persistent frustration of, or failure to comply with, lawful directions of the National Government.
  

141. It is my respectful opinion that any social, administrative and financial problems that may confront the nation can be capably dealt with the processes and procedures already provided by law,[81] instead of resorting to precipitate legislative action.

142. If the concerns and complaints of the national government are about the capacity of provincial governments to "deliver the goods and services", then what is insurmountable about overhauling the administrative machinery, or even the structure, at the provincial level to ensure that goods and services do go down and reach people at the grassroots level. And what is so difficult about disciplining and holding people responsible and accountable for any shortcomings or inefficiencies?

143. The amendments in the 2006 Amendment Law that, firstly, removed the presidents of local-level governments from membership of provincial assemblies; and, secondly, their right to stand for election (by the provincial assembly) to the post of Deputy Governor; and, finally, removed one representative to represent the heads of both urban authorities and urban councils, removed and emasculated the elective nature and composition of provincial assemblies, contrary to s 187C(2)(a) Constitution.

144. The unavoidable conclusion about this deliberate dilution and emasculation is that provincial governments have now been replaced by unelected people who constitute an extension of the national government. An agency of the central government in the provinces. Sounds familiar? Of course, this was how things were during the colonial regime before the first House of Assembly in 1964! As such the Amendment Law of 2006 is invalid and should be struck down as being unconstitutional. And I so order.

145. KIRRIWOM J: In this Reference the question posed for the Supreme Court’s interpretation and opinion is:

‘Whether Sections 1 and 2 of the Organic Law on Provincial Governments and Local-level Governments (Amendment No 10) Law 2006, in removing:

(1) Heads of the Rural Local-Level Government as Members of the Provincial Assembly; and

(2) One representative to represent the heads of both urban authorities and urban councils as Member of the Provincial Assembly; and

(3) Either the Heads of the Rural Local-Level Government or the Representative of the Heads of both Urban Authorities and Urban Councils from contesting the post of Deputy Governor

is contrary to the requirements of Section 187C(2)(a) of the Constitution to have "an elective or mainly elective legislature", as understood, applied and enforced within the meaning of the Second National Goal (Equality and Participation) of the National Goals and Directive Principles and therefore unconstitutional?’

146. Prior to the amendment, section 18 of the Organic Law made provisions for Office of the Deputy Provincial Governor who was to be elected from Provincial Assembly. The amendment ensured that the position of Deputy Governor remained with Members of the National Parliament. This Court is also asked to advise as to the constitutionality of this amendment as well.

147. I have read the judgments of the Chief Justice and my Brother Justice Gavara-Nanu and I agree with the reasons and conclusion both have reached. The background to the Reference has been well covered by the Chief Justice in his judgment but I wish only to make some pertinent points on the subject of this Court’s interpretation and opinion.

148. The evolution and development of the present Provincial Government system as modified over time since Independence has a tumultuous history of going through so many changes. Needless to say one only has to go to the Final Draft of the Constitutional Planning Committee Report to appreciate the wisdom of the Founding Fathers of the Constitution who decided that a decentralized form of government that empowered and recognized all persons at all levels of society was the best type of governmental system to adopt for the country’s diversified population.

149. Unfortunately, their noble wish and intention lost their purpose and foresight in the implementation of the system of government in the Provinces except for one or two provinces in the country. As the result questions were raised in the National Parliament as to the appropriateness of the system based on conflicting advice and views given on the interpretation of the laws governing the system in place because of, inter alia, these reasons:

(a) Goods and services were not reaching the vast majority of people living in the districts;

(b) There were gross abuses of funds and power

(c) Gross mismanagement and maladministration.

150. This Reference has come about because pursuant to Sections 1 and 2 of the Organic Law on Provincial Governments and Local Level Governments (Amendment No.10) Law 2006, in an attempt to rectify some of these anomalies through this amending legislation the Parliament amended section 10 of the Organic Law on Provincial and Local Level Government Elections which established the Provincial Government and the Provincial Legislature thereby removing the heads of Local Level Governments and representative of the heads of Urban Local Level Governments, thus leaving only the National Members of Parliament and nominated members as the only power-brokers to be involved in decision-making at the provincial and district level.

151. In doing so the amendment, in a nutshell, created a situation where in some Provinces, the Provincial Legislature would be mainly constituted by Members who are not directly or indirectly elected by the people as is the clear intention of the People.
152. This reference seeks to have the amendments declared unconstitutional as they are in conflict with section 187 C (2) of the Constitution. Section 187C provides:

""187C. Constitution, functions, etc., of Provincial Governments and Local-level Governments.

(1) Subject to this Part, an Organic Law shall make provision in respect of the constitution, powers and functions of a Provincial Government or a Local-level Government.

(2) For each Provincial Government and Local-level Government, there shall be established—

(a) a mainly elective (elected directly or indirectly), legislature with such powers as are conferred by law; and

(b) an executive; and

(c) an office of head of the executive.

(3) An Organic Law shall provide for the minimum number of members for the Provincial Assemblies and Local-level Governments and the maximum number of members that may be appointed as nominated members of Provincial Assemblies and Local-level Governments.

(4) An Organic Law shall make provision for and in respect of—

(a) grants by the National Government to Provincial Governments and Local-level Governments; and

(b) subject to Subsection (4A), the imposition, collection and distribution of taxation by Provincial Governments and Local-level Governments,

and may make other financial provisions for Provincial Governments and Local-level Governments, to an extent reasonably adequate for the performance of their functions.

(4A) Where an Organic Law provides for the imposition, collection and distribution by Provincial Governments and Local-level Governments of sales and service tax, it may also provide that the National Government has concurrent power to impose, collect and distribute sales and service tax.

(4B) An Act or Acts of the Parliament—

(a) passed during the period between 19 July 1995 and the date of certification of Constitutional Amendment No 27—Sales and Services Tax; and

(b) providing for the National Government to impose, collect and distribute a sales and services tax (by whatever name known),

are validated, to the extent that the provisions of the Act or Acts were in contravention of this Constitution, in accordance with Schedule 6.

(5) An Organic Law shall make provision for the devolution and delegation to each Provincial Government and Local-level Government of substantial powers of decision-making and substantial administrative powers in respect of matters of direct concern to the province and to the local-level government area.

(6) An Organic Law shall make provision in respect of the legislative powers of Provincial Governments and Local-level Governments." (emphasis is added)

153. Prior to the amendment, section 10 of the Organic Law on Provincial and Local Level Governments read as follows:

"10. Provincial Government and Provincial Legislature.

(1) A Provincial Government is hereby established for each province.

(2) A provincial legislature, to be known as the Provincial Assembly or by whatever local name is considered appropriate, is hereby established for each Provincial Government.

(3) A Provincial Assembly shall consist of—

(a) all Members of the Parliament representing electorates in the province; and

(b) heads of the rural Local-Level Governments in the Province;

(c) one representative of the heads of the Local-Level governments to represent the urban Local –Level Governments in the Province;

(d) subject to Subsection (6), where the chieftaincy system is in existence and is accepted in a province, paramount chiefs from the province—

(i) not exceeding three in number; or

(ii) where the Minister responsible for provincial government and local-level government matters considers that particular circumstances justify it, not exceeding four in number,

or their duly appointed nominees, who shall be appointed by the Minister responsible for provincial government and local-level government matters on the recommendation of the Provincial Executive Council; and

(e) one woman representative nominated in accordance with an Act of the Parliament and appointed by the Provincial Executive Council; and

(f) such other members, not exceeding three in number, as the Provincial Assembly may appoint from time to time.

(4) An Act of the Parliament shall make provision for the qualifications and disqualifications of the members referred to in Subsection (3)(f).

(5) All members of a Provincial Assembly have full voting powers and shall be counted towards the quorum of a Provincial Assembly.

(6) Where there are more than one paramount chiefs in a district only one may be recommended for appointment. "(emphasis is added)

154. The 2006 Amendment removed subsection (3)(b) and (c) and the amended section now reads:

"10. Provincial Government and Provincial Legislature.

(1) A Provincial Government is hereby established for each province.

(2) A provincial legislature, to be known as the Provincial Assembly or by whatever local name is considered appropriate, is hereby established for each Provincial Government.

(3) A Provincial Assembly shall consist of—

(a) all Members of the Parliament representing electorates in the province; and

(b) subject to Subsection (6), where the chieftaincy system is in existence and is accepted in a province, paramount chiefs from the province—

(i) not exceeding three in number; or

(ii) where the Minister responsible for provincial government and local-level government matters considers that particular circumstances justify it, not exceeding four in number,

or their duly appointed nominees, who shall be appointed by the Minister responsible for provincial government and local-level government matters on the recommendation of the Provincial Executive Council; and

(c) one woman representative nominated in accordance with an Act of the Parliament and appointed by the Provincial Executive Council; and

(d) such other members, not exceeding three in number, as the Provincial Assembly may appoint from time to time.

(4) An Act of the Parliament shall make provision for the qualifications and disqualifications of the members referred to in Subsection (3)(f).

(5) All members of a Provincial Assembly have full voting powers and shall be counted towards the quorum of a Provincial Assembly.

(6) Where there are more than one paramount chiefs in a district only one may be recommended for appointment."

155. The Ombudsman Commission contended that by removing the heads of Local Level Governments and representative of the heads of urban Local Level Governments as active participants in power-sharing in the second and third level of government, the Parliament has violated the Second National Goal and Directive Principle enshrined in the Preamble of the Constitution which declares equal opportunity for all citizens to participate in the affairs of the country as far as their talents can permit them in the political, economic, social, religious and cultural life of the country. This is what the Constitution says:

"2. Equality and participation.

We declare our second goal to be for all citizens to have an equal opportunity to participate in, and benefit from, the development of our country.

WE ACCORDINGLY CALL FOR—

(1) an equal opportunity for every citizen to take part in the political, economic, social, religious and cultural life of the country; and

(2) the creation of political structures that will enable effective, meaningful participation by our people in that life, and in view of the rich cultural and ethnic diversity of our people for those structures to provide for substantial decentralization of all forms of government activity; and

(3) every effort to be made to achieve an equitable distribution of incomes and other benefits of development among individuals and throughout the various parts of the country; and

(4) equalization of services in all parts of the country, and for every citizen to have equal access to legal processes and all services, governmental and otherwise, that are required for the fulfillment of his or her real needs and aspirations; and

(5) equal participation by women citizens in all political, economic, social and religious activities; and

(6) the maximization of the number of citizens participating in every aspect of development; and

(7) active steps to be taken to facilitate the organization and legal recognition of all groups engaging in development activities; and

(8) means to be provided to ensure that any citizen can exercise his personal creativity and enterprise in pursuit of fulfilment that is consistent with the common good, and for no citizen to be deprived of this opportunity because of the predominant position of another; and

(9) every citizen to be able to participate, either directly or through a representative, in the consideration of any matter affecting his interests or the interests of his community; and

(10) all persons and governmental bodies of Papua New Guinea to ensure that, as far as possible, political and official bodies are so composed as to be broadly representative of citizens from the various areas of the country; and

(11) all persons and governmental bodies to endeavour to achieve universal literacy in Pisin, Hiri Motu or English, and in "tok ples" or "ita eda tano gado"; and

(12) recognition of the principles that a complete relationship in marriage rests on equality of rights and duties of the partners, and that responsible parenthood is based on that equality."

156. The aspirations and wishes of the People are clearly spoken in unambiguous language expressed in the Preamble of the Constitution and cannot be made any clearer than that. The practical effect of the amended law is seemingly denying the People especially those elected to public elective office in the Provincial Elections of realizing this aspiration by excluding them from active participation in the Provincial law making body.

157. There is some merit in this argument where those Provincial Leaders previously recognized in the Provincial Assembly have now been sidelined and the National Parliamentarians have assumed their place.

158. Quite apart from contradicting what the People have asserted in the Preamble to the Constitution, the amendment also offends the clear intention of the Founding Fathers of Constitution as to the composition and power-sharing in decision-making at all levels of government in the decentralized system of government adopted on Independence which has become entrenched as the fortress of our constitutional democratic government clearly stipulating that the law-making power of the people must be vested in the elected representatives of the people at all levels of government.

159. The Ombudsman Commission and those interveners arguing Affirmative contend that the amendment not only removed the elected Heads of Local Level Governments and Representative of Elected Heads of Urban Local Level Governments, it has created an anomaly in the implementation of the law whereby it provided avenue and possibility for non-elected members or appointed members, (which varied from Province to Province depending on size), who might hold the majority membership in a Provincial legislature, to exercise the people’s legislative power, in direct contrast to section 187C(2) which stipulated that " for each Provincial Government and Local-level Government, there shall be established.. a mainly elective (elected directly or indirectly), legislature with such powers as are conferred by law."

160. Essentially what the law is saying is that the Legislature can only be occupied by mainly elected representatives although there can be others who may have been allowed the privilege by operation of law provided they do not constitute the majority of membership of the law-making body for purposes of passing any law. That is a privilege that must always remain with elected members whose ascension to that public office is the result of exercise of franchise through popular ballot in an election. When a Provincial Legislature lacks this majority in places where non-elected Members out-number those elected members such as those elected to the National Parliament and Local Level Governments, those non-elected majority who constitute the quorum for a meeting of the Provincial Legislature would not be properly constituted in accordance with section 187C (2) of the Constitution to exercise law-making powers of the Provincial Legislature.

161. This has been clearly demonstrated during the counsel’s addresses where several Provinces were singled out such as Manus where there are only two National Members of Parliament and some Provinces for example Enga whose large number of National Members are Members of the National Executive Council or Ministers of State thus excluded from the membership of the Provincial Legislature. These are few examples where in practical application of the law, section 187 C (2) would be rendered a meaningless provision in the laws governing the system of lower level of governments in the country.

162. Law passed by the National Parliament, especially the Constitution and the Organic Laws must have uniform application to all persons without discrimination for whatever reason or purpose. The Provincial and Local Level Governments were not established to take effect and operate selectively in some parts of the country only and not the rest for whatever reason. The Constitution would have been quite specific in that regard if that was to be so and so it must be taken that the law passed as per that amendment was meant to have universal effect across the board.

163. Thus if its application throughout the country was not possible due to the different political structures and composition of memberships of the Provincial Legislatures where they applied, that law must be deemed to be unconstitutional.

164. The question of mainly elective legislature has been extensively discussed and determined in SCR No 2 of 1995: Reference by Western Highlands Provincial Executive [1995] SC486. The Chief Justice and my Brother Justice Gavara-Nanu discussed this aspect and I will not re-agitate the same point.

165. It is however interesting that the Counsel for the Attorney General introduces a different dimension in this race for inclusion or exclusion of a class or group of people when he attempts to define what is meant by ‘elected directly’ and ‘elected indirectly’ in his categorization of Members of the Provincial Legislature since the amendment complained of.

166. Mr. Kende submitted that those who qualified under the category of ‘elected directly’ were the National Members of Parliament, Heads of Local and Urban Level Governments and members of Local Level Governments who were elected in accordance with the requirements of the Constitution and the Organic Law on Elections. However, he submitted that those members who were appointed by nomination to the Legislature representing various community interests groups such as churches, women and trade unions in accordance with section 29(1)(c)(i),(ii) and (iii) and (d) of the Organic Law, these were members ‘mainly elected indirectly’ to the Assembly or Legislature as they have been subjected through some form of selection process before their eventual nominations and appointments and as such fulfilled the requirements of section 187C(2)(a) of the Constitution.

167. That argument however appears to lose ground when compared with the distinction that those in the affirmative side have applied in differentiating the two groups of members as either elected directly or elected indirectly into the Provincial Legislature. There was some discussion on the timing of this particular amendment where this distinction appeared relevant. And this would have been the time when members of the Provincial Governments were either ‘elected directly’ or ‘elected indirectly’. This was the time when the constituencies in some Provinces elected their representatives directly to the Provincial Assembly while in other Provinces the elected councilors or ward members, as they are now called, lobbied and voted their President who automatically became their member in the Provincial Assembly. In this later category, this member was said to be ‘elected indirectly’ to the Provincial Assembly. In my view, the phrase ‘elected directly or indirectly’ is a remnant of the law as it once stood to serve its purpose at that time but by subsequent amendment of the law over time has now rendered the meaning and intention of that law out of context with theme and scheme of recent changes made to accommodate changing circumstances.

168. I am not inclined to adopt the definitions mooted by counsel for the Attorney general as it would open up the law to all kinds of abuse. The word ‘elected’ in the context of our legislative bodies must be confined to the process and procedures enshrined in the Constitution for the election of all leaders.

169. This amendment contradicted the spirit of the Constitution that prayed for mainly elective members of the Provincial Assembly and more fundamentally for a fully decentralized system of Government that guaranteed power-sharing by leaders at all levels of the society and not just concentrated amongst National Parliamentarians on the one hand or in the other where non-elected persons played the role of legislators in the Provincial Assemblies without the involvement of elected leaders in the extreme situation such as in Manus where the Assembly might have neither of the two National MPs as Members where both accepted to be in the Cabinet .

170. The situation faced here is reminiscent of the eighties when a uniquely Papua New Guinean problem caused quite a concern for the Parliament. This was the issue of tribal fights in the Highlands of Papua New Guinea which was painting a very oblique picture for the country, overseas and unhealthy for investor confidence.

171. Acting on some so-called expert advice or reacting to the crises by resorting to whatever means feasible, the Parliament passed a law called ‘Inter-Group Fighting Act 1977.’ This law empowered the Magistrate to conduct an enquiry under section 17 where there has been a tribal fight. If the learned Magistrate comes to the conclusion on the evidence that the actions of the groups were such that a penalty should be imposed on the leaders of the groups involved in the fight, the Magistrate shall give the leaders notice and call on them to show cause with a specified time as to why penalty should not be imposed on them.

172. Where the leaders do not show cause, the learned magistrate proceeds to impose penalty on the group leaders which is fine not exceeding K 20, 000.00 and given three months to pay under section 17. If the amount levied remains unpaid after three months an order for imprisonment is made against the leaders concerned under section 20.

173. The Public Solicitor filed a Supreme Court Reference under section 18 of the Constitution challenging the constitutionality of the Act that had the effect of penalizing the leaders for the wrongs of their tribesmen when the Constitution created no such offence - see SCR No.1 of 1981 re: Inter Group Fighting Act 1977 [1981] PNGLR 151. It is no crime being a leader. At the same time it is no crime for a leader not to stop or prevent a tribal fight taking place.

174. The five men Supreme Court that heard the reference was told by counsel representing the Principal Legal Advisor that tribal fight was a unique Papua New Guinean problem and it required a unique Papua New Guinean sanction or way to deal with it, hence this legislation was the right tool to hold the leaders accountable for their people’s actions.

175. The Supreme Court by majority upheld the Public Solicitor’s reference and struck down these provisions and others of the Inter-Group Fighting Act as violating the Constitution and imposing new sanctions that did not constitute any criminal offence leaving the entire Act almost bare with no flesh.

176. Counsel for the Principal Legal Advisor likened the unique attempt to deal with this local problem to what the English Law Reformers tried to do which was reported in the New South Wales Law Reform Commission publication, citing from the English Committee of Supreme Court Practice and Procedure when considering reform to the Rule Against Hearsay Evidence which warned against marrying two different systems which is the English system (adversarial) and the Continental system (inquisitorial). Pratt, J in his judgment at p. 165 states:

"I appreciate that the State has laid some emphasis on the fact that the procedures under Pt. IV are more akin to inquisitorial examination than the processes normally expected where a person is brought before a court prior to having a penalty imposed upon him. Perhaps part of the difficulty that has arisen in this legislation stems from an attempt to weld into the system the inquisitorial process. Perhaps the words of the New South Wales Law Reform Commission appearing at p. 218 of their 1978 report on the Rule Against Hearsay spell out a warning of the difficulties inherent in such an attempted marriage. At that page the commissioners extract the following paragraph from the English Committee of Supreme Court Practice and Procedure:

"We considered carefully whether it would be right to recommend the adoption in England wholly or in part of the Continental practice in regard to evidence, but we have come to a conclusion against so doing. In the first place, to do so would obviously strike at the root of the English ideas of the administration of justice. There are no doubt two views on the question which system is better adapted to elicit the truth. We are not prepared to say that in this respect the French or German systems are superior: and there is no demand, so far as we have been able to discover, for such a sweeping change ... Under the (English) system, therefore, the greatest weight and importance is attached to the oral testimony of the parties and their respective witnesses. A change to the Continental system would logically involve a shifting of this very characteristic emphasis. We do not think such a change could effectively be made unless the Continental system of the administration of justice were adopted in its entirety. Te laws and rules of evidence in England are adapted to the English system of justice. Those in France and Germany are adapted to the French and German systems. They are not interchangeable. The adoption here of Continental rules and practice in regard to evidence would mean a new kind of judiciary with many hundreds of local examining magistrates."

177. Pratt, J goes further and makes this observation:

"I take this to mean that where an attempt is made to graft a small portion of the Continental system onto the English and therefore presently Papua New Guinea system, the attempt is doomed to failure for by making a small alteration in one area of the law, it can bring about serious conflicts with other more basic areas. What the English committee seems to be saying, and I think their remarks would be completely applicable to the situation in Papua New Guinea, is that it must be all or nothing."

178. The Provincial Government System in PNG is a unique PNG creation that won the admiration of many island nations around the Pacific and the world. Solomon Islands, our nearest small island nation neighbor wanted to emulate the system because of the unique structure and the firmly entrenched safeguards that is now one of the most referred to Constitutions in any forums where issues of structure of government and separation of power and independence of the judiciary and supremacy of the Parliament are discussed.

179. The Founding Fathers of the Constitution have given the Nation decentralized system of government that worked. Where it did not work, it was not the fault of the system but was the result of human failure. Human failure cannot be corrected by legislative changes or amendment but through decisive executive actions tailored to meet those short comings.

180. Successive changes made to the Organic Law over short period of time was bound to create unsatisfactory results as it was destined to collide with some basic primary goals and objectives underpinning the introduction of the Provincial Government system, decentralization of power. One the Government’s Eight Point Plan was decentralization and there was even a Ministry and Public Service machinery created specifically for purposes of overseeing decentralization across the board throughout the country. This is part of the history of this country that this court can take into account as part of the res gestae as these Government policies were in force at the material time of the making of the Constitution and by rule of contemporaneity, this is critical public information to be disseminated through this medium.

181. It is contrary to the noble intention of the Constitution when power is concentrated on National Members of Parliament and nominated Members while elected Members in the Provinces become spectators. In the context of decentralization, there cannot be half-way approach where National Parliamentarians sit in both the National and Provincial Legislatures with nominated Members when the central theme of decentralization of power has not changed. It is either wholly decentralized system or centralized one.

182. For these reasons I concur with the Chief Justice and my brother Justice Gavara-Nanu that the 2006 amendment of the Organic Law on Provincial and Local Level Government which removed from the Provincial Legislature, Heads of Local Level Governments and Heads of Urban Councils thereby concentrating or focusing power upon the National Parliamentarians and non-elected members of the Provincial Assembly, which is potentially open to offend Section 187C(2) of the Constitution, is thus unconstitutional.

183. The consequential effect of the Court’s opinion as to the constitutionality of 2006 amendment to section 10 is that the amendment to section 18 of the Organic Law which rides on section 10 must likewise be declared unconstitutional.

184. I will therefore answer the question in the Affirmative.

185. GAVARA-NANU J: This is a Special Reference by the Ombudsman Commission made pursuant to s. 19 of the Constitution, seeking opinion of the Court on the question posed in the Reference. The question is set out in the judgment of the Chief Justice and I do not wish to restate it here. The question arises from the amendments made to ss. 10 (3) (b) and (c) and 18 (2) of the Organic Law on the Provincial Governments and Local-level Government ("OLPLLG"), those amendments were made by ss. 1 and 2 of the OLPLLG (Amendment No. 10) Laws of 2006. The question however, relates more specifically to the amendment to s. 10 (3) (b) and (c) of the OLPLLG.

186. The amendments removed the Presidents of the Local-level Governments and one representative representing the heads of both urban authorities and councils from being members of Provincial Assemblies and the Presidents of the Local Level Governments from being eligible to be elected as Deputy Provincial Governors.

187. The amendments however retain all Parliamentarians representing electorates in the Provinces to be members of Provincial Assemblies or legislatures and the Deputy Provincial Governors’ posts are restricted to Open members of the Provinces.

188. The question posed by the Reference in a nutshell is whether the amendments, i.e. new s.10 (3) (b) and (c) comply with s. 187 C (2) (a) of the Constitution.

189. Mr. Narakobi argued for the affirmative, the thrust of his argument is that the amendments are unconstitutional because they do not comply with s. 187 C (2) (a) of the Constitution, in that, the amendments have the effect of the membership of Provincial Assemblies or legislatures not being "mainly elective", thus are in breach of or are contrary to s. 187 C (2) (a) of the Constitution. Mr. Narakobi also argued that the amendments offend against the intent and the spirit of the Constitution which he says requires equal opportunities being given to all citizens to participate in the political development of the country which is a stated objective of the Constitution under National Goals and Directive Principles No. 2.

190. Mr. Manase and Mr Kambao argued in support of the Referor arguing that the amendments are unconstitutional.

191. Mr. Mende and Mr. Kandi argued for the negative, they argued that amendments to s. 10 (3) (b) and (c) of the OLPLLG are constitutional and that the proper application and construction of the amendments would still result in the Provincial Assemblies or legislatures being "mainly elective" as required under s. 187 C (2) (a) of the Constitution.

192. Section 187 C (2) (a) is in these terms:-

187 C Constitution, functions, etc, of Provincial Governments and Local-level Governments.

(2) For each Provincial Government and Local-level Government, there shall be established -

• (a) a mainly elective (elected directly or indirectly), legislature with such powers as are conferred by law; and...
  

193. In order to answer the question posed by the Reference, it is relevant to interpret what is meant by the words "mainly elective" in the context of a Provincial Assembly or legislature as stipulated by s187 C (2) (a) of the Constitution. The words "elected directly or indirectly" appearing in the brackets in the Sub-section in my view throw further light on the meaning of the words "mainly elective". These words have to be read and considered together to arrive at their true and proper meaning.

194. The amendments to s10 of the OLPPLLG need to be read together with s. 187 (2) (a) to answer the question. The amendments were effected by repealing Sub-sections (b) and (c) of s. 10 (3) of the OLPLLG. Prior to the amendments, those public office holders that the amendments removed were members of Provincial Assemblies. It is to be noted that those members were elected to their respective public offices by their respective constituencies through general elections and by reason of their elective offices they became members of the Provincial Assemblies.

195. Under the amendments the only members of the Provincial Assemblies who are elected to their public offices through general elections are the members of Parliament representing electorates in the Provinces; by reason of their elective offices, they become members of Provincial Assemblies. The Regional members are eligible to become Provincial Governors and amendments to s18 (2) of OLPLLG restricts positions of Provincial Deputy Governors to Open members of the Provinces.

196. Under amended s. 10 of OLPLLG, the rest of the members of the Provincial Assemblies are chiefs, if there are chief-tain systems in particular Provinces or their nominees (s.10 (3) (d) (i) and (ii)), and one woman representative (s.10 (3) (e)). These members are appointed either by the Minister responsible for provincial government and local-level government matters or by the Provincial Executive Councils. The Provincial Assemblies may also appoint such other members from time to time (s. 10 (3) (f)). It is important to note that all these members are appointed; they are not elected in any way to Provincial Assemblies.

197. Under above provisions, the maximum number of appointed members in a Provincial Assembly is eight, which is made up of a maximum of four chiefs or their appointed nominees (in Provinces where there are chief-tain systems), one woman representative and maximum of three other members the Provincial Assemblies may appoint from time to time.

198. In my opinion the words "mainly elective legislature" in s187 C (2) (a), as qualified by the words "elected directly or indirectly" mean a Provincial legislature or Assembly which is comprised mainly of members who are elected directly or indirectly to Provincial legislatures or Assemblies. This can only be achieved through election of members directly to Provincial Governments or Assemblies through general elections. This avenue is of course no longer available following the amendments, which only allow for members of Provincial Assemblies who are "elected indirectly" to the Provincial Assemblies. These members should make up the number of members required for "mainly elective" Provincial Assembly, or legislature. However, the only members of Provincial Assemblies or legislatures that fall into this category are the Parliamentarians, who are the indirectly elected members of Provincial Assemblies. They qualify to become members of Provincial Assemblies because of their positions as Parliamentarians, thus their status in the Provincial Assemblies as indirectly elected members. Their direct election is to the national Parliament. This distinction is significant because of the words "elected directly or indirectly" in s187 C (2) (a) which were amendments made contemporaneously with s10 of OLPLLG.

199. It is noted that in SCR No. 2 of 1995; Reference by Western Highlands Provincial Executive, SC486, the Supreme Court considered and interpreted the words "mainly elective" in s187 C (2) (a), and I can fully appreciate the force and merit in the reasoning behind the dissenting judgement by Kapi DCJ, (as he then was), who said the words "mainly elective" could only mean or refer to Provincial Assemblies which were mainly made up of members who were directly elected to the Provincial Assemblies. The qualifying words "elected directly or indirectly" were not part of s187 C (2) (a) of the Constitution, when that Reference was decided.

200. The appointed members of Provincial Assemblies under s. 10 of OLPLLG cannot qualify to make up "mainly elective" legislatures for the simple reason that they are appointed members. For that same reason, they also cannot be regarded as "elected indirectly" to Provincial legislatures as required under s187 C (2) (a) of the Constitution.

201. It is also important to note that the appointed members of Provincial Assemblies under the amending laws cannot be regarded as "elected indirectly" to Provincial Assemblies because they are appointed to Provincial legislatures or Assemblies at the discretion of the appointing authorities, i.e the Minister responsible for provincial government and local-level government matters and the Provincial Assemblies.

202. Thus, the only members of Provincial Assemblies who qualify to make up "mainly elective" Provincial Assemblies or legislatures are the Parliamentarians who represent the electorates in the Provinces.

203. According to the number of Parliamentarians currently representing each of the Provinces in Papua New Guinea as shown in the data provided by Mr. Kande, not all the Provinces have the number of Parliamentarians required to make up the "mainly elective" Provincial Assemblies. The data is also unreliable because it does not represent all the Provinces.

204. The effect of this is that there are some Provinces, which cannot have "mainly elective" legislatures, to comply with the requirements under s187C (2) (a) of the Constitution. This is sufficient reason for me to find for the affirmative that the amendments to s10 of OLPLLG breach s187 C (2) (a) of the Constitution and are therefore unconstitutional.

205. However, there is another reason why I would answer the question in the affirmative. This added reason relates to the second leg of Mr. Narakobi’s argument that amendments to s10 of OLPLLG offend against the spirit of the Constitution. The spirit of the Constitution as it relates to the Provincial Governments emanates from the purposes for which provincial government system was established. For this, the primary source is the Constitutional Planning Committee ("CPC") Report; relevant parts of which became embodied in the Constitution, notably in the National Goals and Directive Principles No. 2 which expressly provides for equality and participation, thus declaring in part:-

"(1) an equal opportunity for every citizen to take part in the political, economic, social, religious and cultural life of the country".

206. Amendments to s10 for OLPLLG permit the Provincial Assemblies or legislatures to be dominated by the Parliamentarians, thus giving them control over Provincial Governments, including all areas of decision making and governance. This is not what the framers of our Constitution recommended in the CPC Report.

207. There were specific recommendations in the CPC Report for power sharing by the National Government with the Provincial Governments through the process of decentralization. The relevant recommendations can be found in Chapter 10 of the Report.

208. The CPC Report recommended a decentralized system of government for the country. The Report recommended that the National Government was to decentralize its powers to the Provincial Governments which would be made up of members who were to be elected directly to the Provincial Assemblies or legislatures, who would have political control and powers to make decisions at provincial levels (paras 15, 42 and 43 of Chapter 10). The Provincial Assemblies were therefore meant to have powers to make and implement policies and to have ultimate control over their own performances and administrative responsibilities (paras 16 and 44). The members of Provincial Governments were to be elected directly to Provincial Assemblies by the people through general elections (paragraph 45). The Report stressed its belief that holders of political offices at the two levels of government i.e, provincial and national should be separately elected (para 52) and that there should be dialogue and co-operation between Provincial Government members and national Parliamentarians; and that the latter were to be co-opted to the Provincial Governments with rights to debate issues in Provincial Assemblies but were not to have voting rights as they had no such mandate by the people (para. 53).

209. The CPC after extensive consultations with the people of Papua New Guinea went to great lengths to ensure through its recommendations in its Report that the Constitution would provide for truly democratic forms of government both at the provincial level and at the national level and that there was to be no domination and control over provincial governments by the Parliamentarians or the National Government. These recommendations were subsequently embodied and made alive in the Constitution through National Goals and Directive Principles No.2; see SCR No. 3 of 1986; Reference by Simbu Provincial Executive [1987] PNGLR 151.

210. The National Goals and Directive Principle No. 2 does not only provide aid to interpreting constitutional provisions, but it also sets objectives which the Government of the day must strive to achieve; see Application by Gabriel Dusava (1998) SC581 and Haiveta v. Wingti (No. 3) [1994] PNGLR 197. The courts are also sanctioned by s. 25 (3) of the Constitution to give effect to the National Goals and Directive Principles, or at least not to derogate them. This is an embodiment of CPC recommendation in para 2 of Chapter 10 of its Report; see Premdas -v- The Independent State of Papua New Guinea [1979] PNGLR 329; see also SCR No. 3 of 1986; Reference by Simbu Provincial Executive (supra); SCR No. 12 of 2001; Re Validity of National Capital District Commission Act, 2001 (2001) SC680; SCR No.. 2 of 1995; Reference by Western Highlands Provincial Executive (1995) (supra); SCR No. 2 of 1992; Reference by the Public Prosecutor [199] PNGLR 336; SCR No. 1 of 1990; Reference by the Executive Council of the Enga Provincial Government [1990] PNGLR 532; The State -v- NTN Pty Ltd and NBN Ltd [1992] PNGLR 1 and Constitution No. 1 of 1977 (1977) PNGLR 362 (SC 122).

211. This line of authorities cited above say that the courts have to give effect to the National Goals and Directive Principles, when interpreting a constitutional provision. Thus where the court in its fair and liberal interpretation of a constitutional provision finds that a law, including an organic law which in this case is s10 of the OLPLLG offends against not only the provision of the Constitution but also the spirit of the Constitution, then it would be imperative for the court to declare the offending law invalid.

212. In SCR No. 3 of 1986; Reference by Simbu Provincial Executive (supra), Barnet J, when speaking of the spirit of the Constitution and the National Goals and Directive Principles said:-

"During a prolonged process of community consultation the Constitutional Planning Committee endeavoured to tap the will and spirit of the people. It then set out detailed recommendations for constitutional drafting in its report. With the intention of giving effect to this will or spirit of the people, it recommended the inclusion of the National Goals and Directive Principles in the Preamble to the Constitution. After much discussion in party briefing sessions and open debate in the Constituent Assembly these provisions were finally enacted in the Constitution. Section 25 and Sch 1.5 (2) are both intended to ensure that this spirit, acting through the judicial mind, finds its expression in the way the detailed provision of constitutional and other laws are interpreted and applied. This approach to the interpretation of the Constitution was well expressed by Keareny J (as he then was) in The State -v- Independent Tribunal; Ex parte Sasakila (1976) PNGLR 491 at 506, 507 and by Prentice Dep CJ (as he then was) in Constitutional Reference No. 1 of 1977 [1977] PNGLR 362 at 373, 374.

When interpreting the details of a provision in a constitutional law therefore it is an essential pre-requisite for the judicial mind to be enlightened by the spirit of the Constitution itself. This enlightenment comes from developing a thorough understanding of the National Goals and Directive Principles, by taking an overview which will place the particular provision in the context of the total legislative scheme of which it forms a part and by seeking to understand the intention of the founding fathers as they expressed it on behalf of the people, when enacting the Constitution and subsequent amendments".

213. Ten years earlier, in Constitutional Reference No. 1 of 1977 [1977] PNGLR 362, Prentice DCJ (as he then was), in expressing the same sentiments said at 373:

"The task of commencing the interpretation of the striking document that now forms the Constitution of the Independent State of Papua New Guinea and purports to express in noble sentiments ambitions entertained by the indigenous people for their own future government and well being, comes now somewhat invidiously to be performed by the Supreme Court comprised still, as it initially, by expatriate judges...

One reminds oneself that the Constitution neither relies upon nor springs from any source but the will of the people of Papua New Guinea and that every effort should be made to avoid the intrusion into its interpretation of extraneous ideas or vestigial paternalism from the pre-ceding colonial period."

214. The noble sentiments, ideals and aspirations of the people as expressed in the CPC Report, which eventually became embodied in the National Goals and Directive Principles give the Constitution its unique and dynamic character. The National Goals and Directive Principles therefore give and define the spirit of the Constitution as illustrated in the line of cases cited above.

215. Applying the principles I have discussed regarding the spirit of the Constitution, I find that the amendment to s10 of the OLPLLG are contrary to the intent and spirit of the Constitution. The amendments deny power sharing between the Parliamentarians and their provincial counterparts. Furthermore, they centralize power within the National Government and empower the Parliamentarians to dominate and control Provincial and District level governments. These are all contrary to the clear dictates of the National Goals and Directive Principles No. 2, which provide for equality and participation by all citizens in the political life of the country.

216. For the foregoing reasons, I find that the amendments to ss 10 (3) (b) and (c), and 18 (2) of the OLPLLG are unconstitutional. I therefore answer the question in the affirmative.

__________________________

V Narokobi: Lawyer for the Referror
Manase & Co Lawyers: Lawyer for the First Intervenor
Steels Lawyers: Lawyer for the Second Intervenor
Solicitor General: Lawyer for the Third Intervenor
Kelly Naru Lawyers: Lawyer for the Fourth Intervenor

---

^[1] Henceforth, the OC.
^[2] Hereinafter, interchangeably as the OLPGLLG or the Organic Law.
^[3] By “Reference”.
^[4] Henceforth, the Amendment Law.
^[5] Who have to be elected in the first instance by the people at that level, and described universally as “presidents”.
^[6] Who similarly enjoyed elective status in the PA in the first instance.
^[7] At least in relation to the amendments that the Organic Law has been subjected to since its coming into force.
^[8] Pursuant to two filed originating summonses.
^[9] Pursuant to Constitution s 18(2). Unreported SC 854 of 1 March 2007, particularly pp 40-46.
^[10] Underlining mine.
^[11] Most bills for enactment as laws by parliament are introduced into parliament by the executive. Rarely, if any, are there any private members’ bills.
^[12] Classical examples being the federal systems in the United States of America and Australia.
^[13] Sections 187A-187I.
^[14] John Goldring, The Constitution of Papua New Guinea, LBC, 1978, p.14.
^[15] Supra.
^[16] The Oxford Paperback Dictionary.
^[17] Black’s Law Dictionary, 5^th ed.
^[18] Produced by the Department of the Senate and the House of Representative, AGPS, Canberra, 1987, pp.1&2.
^[19] Ibid, p.3. Underlining mine.
^[20] Every five (5) years.
^[21] Constitution, ss 114 and 145.
^[22] And often out-manoeuvred by a dominant and domineering executive.
^[23] On the exercise of powers by those elected to rule and govern in the interests of the people.
^[24] It may recalled (pun not intended) that the once- Hollywood-tough-guy Arnold Schwarzeneger ousted the incumbent Democratic Governor of California on a recall a few years ago on the issue, amongst others, of fiscal mismanagement of the state.
^[25] As invariably found in strict federal systems (supra), though we have a unitary state in the Pacific, Fiji, that has an upper house, the senate, for reasons partly to do with its peculiar colonial system, for instance, the Council of Chiefs to represent exclusively native Fijian interests.
^[26] See CPC Report Ch.8, p.13, para. 133-149, and the Recommendations at p.30, paras. 81(1)-(3).
^[27] See, J Raz, The Rule of Law and its Virtue, (1977) 93 LQR 195-202. Hence our Constitution, s 11 (supra).
^[28] Wade and Phillips, Constitutional Law, 7^th edn., Longmans, 1965, p. 60.
^[29] In Pacific Constitutions, Peter Sack (ed), RSSS, ANU, 1982, pp. 173-187.
^[30] As opposed to according to the whims of men.
^[31] By Constitutional Amendment No.1- Provincial Government, when it was omitted from the final draft that went before the Constituent Assembly.
^[32] The Final Report 1974 (Part 1), Chapter 10.
^[33] Constituting some 50 pages.
^[34] Except , of course, the somewhat rudimentary system of local government councils that had been introduced less than a decade before the first House of Assembly, a system that was not universal. Perhaps the introduction of the “head tax” enjoyed more prominent consideration than the serious inculcation of democracy.
^[35] Azeem Amarshi, Kenneth Good and Rex Mortimer: Development and Dependency, OUP ( Melbourne, 1979).
^[36] The minister and the then ministry/department of “External Territories”.
^[37] And the Regulations and Bylaws passed under these.
^[38] Amarshi et al., p.164.
^[39] Ibid, p. 182.
^[40] Supra.
^[41] “Making of Alterations to the Constitution and Organic Law” and “Urgent Alterations” respectively.
^[42] 187A- 187J inclusive.
^[43] Supra, p.70.
^[44] Ibid.
^[45] Papua, a colony of Australia having succeeded to it (from Britain) after its federation in 1901, and, New Guinea, a United Nations trust territory under the trusteeship system.
^[46] Mark M Turner and David W Hegarty: The 1987 National Elections in Papua New Guinea, The Australian Institute of International Affairs, Occasional Paper No. 6 (1987).
^[47] Ibid.
^[48] These were not elected legislatures.
^[49] Almost always District Commissioners, the most senior and experienced “kiaps”.
^[50] The Territory of Papua and New Guinea Act (of the Commonwealth Parliament) which came into force on 1 July 1949, that provided for the administrative union, and establishment of a single legislative chamber.
^[51] The 1953-1954 annual report on Papua estimated the native population (of Papua alone) to be 488,396.The 1968-1969 annual report for the territory of New Guinea has an estimated native population of 1,702,279. Vast tracts of the unexplored/”undiscovered” New Guinea Highlands had yet to penetrated and brought under government control.
^[52] See Turner, supra.
^[53] Supra.
^[54] Self-government had been granted on 1 December 1973 to a coalition headed by M T Somare as the Chief Minister. His deputy was Dr John Guise.
^[55] Supra.
^[56] By Somare and Guise.
^[57] Which had been formed in 1973.
^[58] The Napidake Navitu had proclaimed the “Independent Republic of North Solomons”.
^[59] NGDP 2(2) calling for the creation of political structures that would enable and ensure effective, meaningful participation by the people.
^[60] Underlining mine, to underlie and emphasize the imperative nature of this right.
^[61] In SCR no. 2 of 1995, Reference by the Western Highlands Provincial Government, SC 486 of 20/9/1995.
^[62] Either an “Open” seat or province-wide provincial/regional seat.
^[63] Who would always be eligible to be elected by the provincial assembly as the “Deputy Governor”.
^[64] As in ‘far removed’ or ‘distant’.
^[65] As engaged in by the majority in SCR No.2 of 1995, see particularly the judgment of Amet CJ., supra.
^[66] More often than not, for convenience sake and saving of funds.
^[67] Which operate under a federal system of government.
^[68] Sir Mari Kapi as he then was.
^[69] OLPGLLGs.
^[70] The Reference was in respect of a bill to amend that was before parliament. The proposed law then was passed by parliament by the time the Reference was entertained by the Supreme Court. See p.45 of the unreported (but numbered ) judgment. Underlining mine.
^[71] Colloquially speaking, drove the final nail on the coffin of provincial governments.
^[72] In this case, already and for some other office or purpose.
^[73] SCR no.2 of 1995(per Amet CJ), p.21, supra.
^[74] Charles 1.
^[75] In 1688 under William of Orange) and Mary.
^[76] Or infamous, depending on which side one was on.
^[77] In his book The Dilemma of Democracy, pp. 21-22.
^[78] Ibid.
^[79] Which, incidentally, included the present Prime Minister.
^[80] Supra,p.1.
^[81] Not to mention, those informal consultative and consensus mechanisms familiar to our traditional societies that were availed of as part of social control /dispute resolution.